Privilege (Withdrawal Agreement: Legal Advice)

David Linden Excerpts

Tuesday 4th December 2018 Commons Chamber

[David Linden (Glasgow East) (SNP)]

I am very grateful for the opportunity to contribute to the debate, Mr Speaker. So far I think I am the newest Member to do so, so this is clearly the first time that I have witnessed a privilege motion coming before the House.

I want to reflect on how we have come to this position. I had to nip out for five or six minutes to attend a Delegated Legislation Committee upstairs this afternoon. Before that Committee began, Government Members were talking about the importance of the Humble Address and how the House must adhere to it. I had been reflecting on the fact that before that, I had been down here, and we find ourselves in the very sorry circumstances of our debating a privilege motion before the House. This is somewhat unprecedented for the vast majority of Members.

Since I entered the House in 2017, time after time, we have seen the Government ride roughshod over this Parliament. This is a Parliament that is meant to be taking back control, but it has been denied money resolutions, it is not adhering to Opposition day votes and it is not adhering to a binding motion of the House calling for the release of this legal advice. It might be uncomfortable for the Government to release that legal advice, but the reality is that the House has voted for that. Members claim regularly that Brexit is an opportunity for us to take back control. Well, I am afraid that Government Members cannot have their cake and eat it. If they are serious about the House taking back control and about adhering to the will of the House that was outlined in November when the original motion was passed, they should vote for the motion in the name of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer).

--- Later in debate ---

[David T. C. Davies (Monmouth) (Con)]

Publishing the legal advice on the Brexit Bill would be a “dangerous precedent”. Those are not my words, but the words of Mike Russell, MSP, who back in March was the Scottish National party’s Brexit Minister. He was talking about the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill. He refused to publish the legal advice because, he said, it would set a “dangerous precedent”.

[David Linden]

Can the hon. Gentleman tell me whether there was a motion in the Scottish Parliament advising Mike Russell that he had to do that?

[David T. C. Davies]

I am sorry; I did not quite catch that.

[David Linden]

The hon. Gentleman was clearly too busy trying to plan how long he will speak this afternoon. Can he tell me, for the record, whether a motion was passed in the Scottish Parliament asking Mike Russell to do that?

[David T. C. Davies]

I am not an expert on the Scottish Parliament—[Laughter]—but I do know that the Scottish National party Minister was refusing to publish that advice. The hon. Gentleman laughs, but it was on the front page of The Scotsman back in March. Mike Russell refused to publish it because he said it was a dangerous precedent.

The fact of the matter is that Governments across the United Kingdom—Governments of all political parties, the SNP included—know that they must have the right to be able to obtain legal advice without that advice being published. Not just Governments but local authorities—even, dare I say, the House of Commons authorities—can get hold of legal advice, and it is very important that that advice remains confidential. If it does not, the danger is that at best it will become a political football, kicked around by members of all parties using the information to try to buttress the arguments that they wish to present, and at worst it will become a stick which can be used to beat our own Government by the Governments of other nations who may, during complex negotiations, have aims that differ very much from our own.

What the Government have been doing is not defending the information about Brexit, because we already know what the problem is. I am an ardent Brexiteer. I already knew that the problem would be over the backstop. None of the information that has come out since then—none of the information that was leaked, rather unhelpfully, over the weekend—has changed anything. We already knew that the problem was the backstop, and we will no doubt spend more than a few minutes debating that over the next couple of days. If anything, however, I have been reassured by what I have seen—reassured that the Government have at least been behaving honourably, because we have not learned a single thing from the leaks that came out over the weekend that we did not already know about. There has been no smoking gun, and no hidden information.

The principle is what the Government have been defending: the important principle that the information that they access remains confidential. It is not only SNP Members who are being inconsistent; so are Labour Members. They already have a Labour Government in Wales, and that Labour Government are not known for their approach to openness. I can certainly tell Opposition Members that I have submitted numerous freedom of information requests to the Welsh Labour Government that have not been properly dealt with, and I am pretty certain that they are not going to start publishing the information that they receive from their legal officers. Let me also say to my Liberal Democrat friends that there is not just a Labour Government in Cardiff; there is a Liberal Democrat Education Minister. Wonderful though she is, will she start publishing the information that she gets from her law officers when she decides to close down school sixth forms, as has happened in my own constituency? I would like to think that she might, but I doubt it very much, and I doubt whether the right hon. Member for Carshalton and Wallington (Tom Brake) will be asking her to do so.

What I detect here is a whiff of inconsistency from Members opposite—a whiff of inconsistency from those who for years have accepted that Governments and public authorities have the right to independent, impartial, confidential legal advice, and who know perfectly well that if that advice is going to be offered up in public it will no longer be sought.

This is a not an attempt to get openness; this is yet another attempt to subvert the will of the people, who in a referendum in 2016 clearly voted to leave the EU, and that is why I will be supporting the Government amendment tonight.

[Andrew Bowie (West Aberdeenshire and Kincardine) (Con)]

I must be one of the few non-lawyers to contribute to this debate. However, I am a passionate believer that the conventions of how we as a Government conduct the business of government should be respected, and that these conventions we abide by are there for a reason. We must protect the integrity of the Law Officers in advising the Government. The ramifications of not doing so—the ramifications of publishing legal advice given to a Government—could be hugely damaging. I wonder whether when the other side are in government—as they surely will be one day—they will be as keen as they ask us to be to publish confidential legal advice.

Members are unlucky today, because I was considering withdrawing from this debate, but I did not feel that I could let the comments of the hon. Member for Glenrothes (Peter Grant) pass without remarking on the near-parody of the position SNP Members find themselves in in attaching their names to this motion. Let me take the House back to October 2012 when the then First Minister Alex Salmond was asked by Members of the Scottish Parliament to confirm whether he had sought legal advice over whether Scotland would continue to be a member of the European Union if it was to gain independence in 2014. Notwithstanding the fact that it transpired that thousands of pounds of taxpayers’ money was spent to cover up the fact that no legal advice was actually sought, in answer to a question on this very topic to the BBC’s Andrew Neil, the former First Minister said:

“You know I can't give you the legal advice, or reveal the legal advice of law officers.”

[David Linden]

I hold the hon. Gentleman in very high regard, but he is missing the point here. There is a difference between being questioned by the BBC about legal advice and Parliament having a binding vote, which is why a contempt motion has been brought before the House today.

[Andrew Bowie]

I fully respect the hon. Gentleman as well, as he knows, but I put it back to him that the Scottish Government have through their actions shown themselves to be disrespectful of the Scottish Parliament on binding motions, for example on primary 1 testing or the named persons legislation or fracking, when the Scottish Government abstained, or possibly the offensive behaviour at football Act, all of which they decided were advisory motions that the Government did not have to abide by.