EU Withdrawal Agreement: Legal Advice

Dominic Grieve Excerpts

Tuesday 13th November 2018 Commons Chamber

[Mr Dominic Grieve (Beaconsfield) (Con)]

I am most grateful to the right hon. and learned Gentleman for giving way. I have great sympathy with the anxieties he is expressing about the legal issues surrounding the potential backstop, but surely he would agree with me that the proper practice is for the Government, at the conclusion of negotiations, to publish a document setting out the Government’s position on the law, and, if I may say, if that differs from what the Attorney General has advised, I would expect the Attorney General to resign forthwith.

[Anna Soubry]

rose—

--- Later in debate ---

[Keir Starmer]

No, I am not. I think I would be right in saying that if any advice was shared outside the ring of confidence, confidentiality would fall away as a basis for non-disclosure to the House. That must be right in principle; it cannot possibly be right that some in this House have seen bits or all of the advice and others have not.

[Mr Grieve]

I agree entirely with the right hon. and learned Gentleman. If the advice were prepared for the Cabinet in order for it to act collectively in taking its decisions, but it were then shared more widely outside, I agree entirely that it ought to be shared with every Member of this House at that point.

[Keir Starmer]

I am grateful for that intervention. I had the privilege of working with the right hon. and learned Gentleman when he was Attorney General, so I know how carefully he attended to his work.

--- Later in debate ---

[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.

--- Later in debate ---

[Mr Dominic Grieve (Beaconsfield) (Con)]

Thank you, Mr Speaker. I shall endeavour not to repeat what has already been said and to be brief.

First, I entirely understand the motivation that has led the Opposition and the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) to bring this motion before the House. I have, on a personal level, every reason to be deeply concerned about the legal implications of any potential Brexit deal. We have heard enough in the last few weeks to give rise to even greater concern about how it will affect our independence, the integrity of the United Kingdom and our ability to hold it together, and the power of Government in future to take independent decisions and not be fettered by a subsequent treaty to the one we are going to be leaving on 29 March, as well as a concern that those issues may come to a conclusion without being fully understood when we have to vote on them.

I have no idea whether the so-called leaked memo that came out a short time ago was correct or not. If it did come from within the Government, it suggested, frankly, a quite disgraceful timetable by which, on the conclusion of negotiations, the House would be bulldozed into starting a five-day debate and coming to a decision without, on the face of it, even time, as it seemed to be set out, for the Government to set out their position, which I would normally expect to be in a White Paper and supported by the Government’s full legal evaluation of the treaty changes taking place. It is often forgotten that in leaving the EU we may be getting rid of the European Communities Act 1972, but when we come on to consider the EU withdrawal agreement Bill, if we get to that point, we are going to be enacting a piece of constitutional legislation of immense importance which has huge significance for United Kingdom citizens living in Northern Ireland and the potential to give rise to great public disquiet. For all those reasons, the terms of the agreement we hope we reach will be of the utmost importance. In a nutshell, there is a big difference between a break clause and a review clause, as any lawyer will know, and it will be of the utmost importance to understand on which side of the line any Northern Ireland backstop lies.

That said, I have to say to the right hon. and learned Member for Holborn and St Pancras that the course he has sought to press this afternoon is a mistaken one. This goes to the very heart of the relationship between the Law Officers and Government. They are, as he knows, there to stand rather aside from the day-to-day thrust of politics. Indeed, it is noticeable that in recent weeks I should think it has been a nightmare for the current Attorney General. If he goes to have pizza with the Leader of the House, it is immediately assumed that he is siding with one faction within Government rather than another, something that has to be avoided at all costs. He has to maintain his independence. Above all, he has to speak truth to power. That is the absolutely fundamental part of his job.

[Anna Soubry]

Does my right hon. and learned Friend agree that at best, given the great force with which he speaks as a former Attorney General, the motion should be defeated and we should not be voting for it? Does he share my concern that I have been told I should abstain on this matter? I do not know why. I suspect it is because there is no majority. If that is the case, who is running the country: this Government or the European Research Group?

[Mr Grieve]

I understand my right hon. Friend’s point. It will be a matter for the Government to determine how they wish to respond at the end of the debate. What I will seek to do now is to set out the reasons why I think the approach the Opposition have taken in the motion is mistaken, and I want to conclude as quickly as possible.

The Attorney General has to speak truth to power. In doing that, he must be in a position to produce legal advice to the Government which is there for their consumption. By demanding that it should be published, we are immediately beginning to skew that process, because it will be prepared with a view to publication. The right hon. and learned Member for Holborn and St Pancras made the point that there may be a difference between advice about what is lawful and a survey of what a treaty adds up to in terms of the obligations it places on this country. I would not be at all surprised if, for example, in the course of doing that the Attorney General might not have to respond to questions that have been transmitted to his office through Cabinet Ministers with queries which, although they may be irrelevant to his advice, might pertain to what had been said in the course of an international negotiation with a third party and therefore would be something we would not wish to put into the public domain. We cannot predict how such advice will be put together.

It seems to me that that precisely highlights why one should distinguish between advice that is produced by a Law Officer, subject to the usual rules of legal professional privilege—I agree with the right hon. and learned Gentleman that if it starts to be published partially it has to be shared with everybody; on that we all agree 100%—but that should be compartmentalised away from what we should be getting from the Government, which is a full statement of the Government’s legal analysis and their collective position. Doubtless, it will be heavily informed by the Law Officers’ advice. As I said, not entirely tongue in cheek, if the document setting out the Government’s legal position and their evaluation of the implications of the treaty is at variance with what the Attorney General has been saying to the Cabinet in informing them as to whether to accept the decision or not, I would not expect the Attorney General to still be in post by dusk that evening. It would be his clear duty to leave office immediately, because he could not continue to work as a Minister within the Government.

I therefore believe, particularly in the light of the assurances given by the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, my right hon. Friend the Member for Aylesbury (Mr Lidington), that in those circumstances and with the assurances he has provided, the House is now beginning to get the reassurance it requires that, first, this process, when it comes to a deal, will be taken in a measured and sensible way, and with a full opportunity for Members to consider the legal implications properly; and secondly, as I suggested, a Law Officer, who customarily can sit on the Government Benches and intervene in debate does so as we go through the Bill to clarify points that may need clarification. That used to be done all the time. I tried to restore it, but for various reasons it seemed to have gone out of fashion when I was in opposition. My hon. and learned Friend the Solicitor General has been pretty assiduous at doing that, and the Attorney General can do it too. That should lead to the House having all the information it needs without breaching a convention which in my view, for the very reasons I have just heard also apply for the Scottish Government, is really important. I do not think it is necessary or desirable that we should be considering such a breach for the purposes of reaching the proper conclusion to these very important debates.

I simply urge the House to consider carefully what has been said and express the hope that it will be possible to proceed in a way that does not breach what I think is a really fundamental and important convention. As I know from my time as Attorney General, it is of the utmost importance that the dialogue between the Law Officers and Government, whom they are there to serve, can be carried—

[Sir Oliver Heald]

rose—

[Mr Grieve]

I give way to my right hon. and learned Friend.

[Sir Oliver Heald]

I am grateful—of course, my right hon. and learned Friend and I worked together in the Law Offices. Does he agree that one thing that people may not be aware of is the very wide range of issues of a legal nature, many of them sensitive, that come before a Law Officer? The reason for the precedent and the convention that we do not put advice into the public domain is that it is very important that these sorts of pieces of advice, on confidential matters of a very wide-ranging nature, should be private to the Government.

[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.

[Hilary Benn (Leeds Central) (Lab)]

This has been a very constructive and helpful debate, and it greatly illustrates the power of the House to concentrate the mind of the Government. I would say to the right hon. and learned Member for Beaconsfield (Mr Grieve), who has just sat down, that I do not think Parliament doing its job is coercing the Government; it is Parliament doing its job.

I accept, as my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) did at the beginning of his powerfully argued, forensic case, the argument that in general, Governments should not be required to release legal advice. It is a long-standing convention, contained, as we have heard, in the ministerial code, and the reasons for it are well understood. However, in this specific case, I would argue that we need to take other considerations into account. I note that the Minister quoted from “Erskine May”—he did so at some speed, but there was a word in there that I want to highlight. The sentence says:

“Therefore, the opinions of the law officers of the crown, being confidential, are not usually—

I emphasise “usually”—

“laid before Parliament, cited in debate or provided in evidence before a select committee”,

so “Erskine May” concedes that it is not an absolute bar.

The first consideration—this was the first reason that my right hon. and learned Friend the Member for Holborn and St Pancras set out—is the scale and importance of the decision that we are going to be asked to make. I do not think it is a subject of argument in the House that the withdrawal agreement that is currently being negotiated will have the most significant implications for the future of our economy, society, laws, and international obligations, including the Good Friday agreement. It will also have implications for the EU withdrawal agreement Bill, which the right hon. and learned Member for Beaconsfield referred to a moment ago. When we come to that Bill the House may well be told, “You need to agree to this clause, because that’s what we signed up to when we finalised the withdrawal agreement.” The current draft of the agreement—at least, the March version—is 129 pages; it is already very complex. If there is an agreement, the section on the obligations that we may take on in respect of the Northern Ireland backstop is likely to be even more complex still, judging by the reports that we read.

What seems to be going on at the moment is that the EU is insisting—this goes to the heart of some of the concerns that have been expressed about the withdrawal agreement—that the Northern Ireland-only backstop that it has proposed has to remain in the agreement, whereas the Government are arguing that the UK-wide customs backstop ought to be prioritised, so that the Northern Ireland-only version is never used. As we know, the problem with the UK-wide backstop is that in truth, if it ever comes to be used, it will have to remain in place. There are arguments about a time limit, which I know the Minister understands, and about one party unilaterally deciding to pull the plug on the backstop. Neither of those can possibly be the case, because whatever backstop is applied, including the UK-wide backstop, it will have to remain in place unless and until something else comes along that achieves the same outcome, which is to keep the Northern Ireland border as it is today.

The backstop may well need to be used—how many people in the House actually believe that between now and December 2020, all the issues relating to our future partnership will be negotiated successfully? I bet that almost no one does. Apart from former Government Ministers who expressed great confidence that it was possible, nobody thinks that it will be. Therefore, in the absence of an extension of the transitional period, whatever backstop is agreed in the next day or two, if that is what happens, will have to come into effect. That is why we read that the EU side is trying to get clear commitments from the UK about single market rules, employment legislation, state aid and most recently, fisheries.

The irony is that having initially rejected the idea of a UK-wide backstop because it feared that it would pre-empt the negotiations on the future relationship, the EU then said that it was willing to discuss it, but now it realises that it has to work through and tie down a whole load of things, precisely because the backstop might last for a long time and, in effect, become the future relationship pro tem. The argument we are making is that the House, along with businesses and everyone else affected, needs to understand in particular the bit of the agreement that we have not yet seen and what legal obligations we will be taking on. That is the first point.

The second point is the argument for transparency. It pains me to say this, but it is true: throughout the process thus far, there has been a general reluctance on the part of the Government to release the information that we need. I say that as the Chair of the Exiting the European Union Committee, because it is an issue on which the Committee has expressed strong views. I think I am right in saying that this is the third occasion on which a motion for a Humble Address has been used to try to persuade Ministers to give us information and advice relating to the Brexit process. I will not go over the history of the impact assessments that never were or the exit analyses that we did eventually get to see, but suffice it to say that the magnitude of the Government’s choices about their strategy for implementing the referendum decision has not been matched by careful analysis of the impact of those choices. It still seems extraordinary to me that at the time of the announcement that the UK would be leaving the customs union, the Government had not undertaken a formal quantitative assessment of the economic impact of doing so. That was what the former Secretary of State told us when he appeared before the Committee. It is welcome that the Government have made commitments, repeated from the Dispatch Box today, that we will get a full economic assessment if there is a deal, but I gently say that it is far too late in the process.

It is now absolutely clear that the Government’s red lines have boxed them in, which is why we are having this discussion about the Northern Ireland backstop, and were never tested for their implications before they were announced. We are living with the consequences. The reason why there is a problem with Northern Ireland is precisely that the Government said on the one hand, “We are leaving the customs union and the single market,” and then on the other hand, “Oh, by the way, we want to keep an open border between the Republic and Northern Ireland.” As the negotiators are discovering late into the night and into the early hours, it is really, really hard to square that circle.

My final point is that this decision is not just for the Cabinet. Clearly, whether the Cabinet agrees will be important, but it is a decision for Parliament. Parliament therefore needs all the information it requires to do its job, including the legal advice. Ministers have argued that the advice cannot be released, but the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office said that a statement of the legal position could be published. The right hon. and learned Member for Beaconsfield made the really important point that the two cannot, by definition, be different—they must be the same.

[Mr Grieve]

The thrust of the two must be the same, but it is possible for them to be worded differently, and for one to take account of all the factors the Attorney General was asked to take into consideration and the other to set out the Government’s collective position. That is the really important constitutional point. Provided that there is enough time for the statement to be properly considered, I think it ought to meet the need the Opposition have rightly raised.

[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.