Privilege (Withdrawal Agreement: Legal Advice)

Gareth Snell Excerpts

Tuesday 4th December 2018 Commons Chamber

[Alex Chalk (Cheltenham) (Con)]

It has been said more than once in this debate that this is the high court of Parliament. My constituents, and anyone else watching the debate, might assume that that is some historical nicety or arcane expression, but it is far more important than that. In the context of these proceedings, this court has the ability to achieve the conviction, punishment and disgrace of one of our number. Therefore, it is critical that when it does so, it complies with what we might think are natural rules of fairness and, in the present context, other important statutory limits—most obviously, of course, the European convention on human rights.

Why does that matter? Any court, be it the magistrates court, the Crown Court, the High Court or the Court of Appeal, must ensure that its proceedings are fair. Never is that more important than here in the high court of Parliament. It is no defence to say, “Well, we are seeking to condemn the Government as a whole.” In the court of public opinion, assumptions and judgments will be made about precisely who is being identified. If anyone has any doubt about that, it is made clear in the press that is already circulating on social media who it is who stands to be condemned.

In those circumstances, we need to be careful to ensure that what is taking place is truly fair. If these were criminal proceedings in a normal court—the magistrates court or the Crown Court—the first question would be what precisely is being charged. What is the matter that is being breached? I suggest that there is serious confusion about what was ordered on the last occasion—the proceedings on 13 November. The written motion before the House on that day stated:

“That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full”.

In the course of those proceedings, an attempt was made—perfectly properly, no doubt—to seek to amend that motion.

The document submitted to the House yesterday states that

“During the debate on that motion Labour’s frontbench made it clear that: ‘the motion requires the publication of the final and full advice’”.

Leaving to one side for a moment precisely what is meant by “final and full”, and leaving aside whether those two adjectives are capable of pulling in different directions, I suggest that some confusion must remain about what exactly happened. There were two hon. Members who sought to clarify what it was that we were being asked to vote on—my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) and my hon. Friend the Member for Banbury (Victoria Prentis), who is in her place. It was you, Mr Speaker, who said:

“Order. I am extremely grateful to the hon. Lady. It might profit her and all Members of the House if they listen to the development of the argument in which the shadow Secretary of State is engaged. Frankly, it is not really very confusing at all. There is a motion, and Members can read the motion and form their own view of it.”

In that remark, it seemed to me that you were saying, “Look at the text: it is tolerably plain.” But then my hon. Friend the Member for Chelmsford (Vicky Ford) said:

“I am deeply unclear—are you asking for publication of the final advice”—

which is what was being proposed orally—

“or of any legal advice”.—[Official Report, 13 November 2018; Vol. 649, c. 193-96.]

Although it is not necessarily for me to give evidence, there was a state of some confusion at the end of the proceedings on 13 November about precisely what had been ordered. That matters because the wording that appears in this motion is the latter, not the former. In other words, it is what is amended. That is significant because, if we are applying the European convention, proceedings must be fair under article 6, and article 7 says that there must be no punishment without law. In other words, it must be crystal clear precisely what law is alleged to have been contravened. I want to make the basic point that there was considerable confusion in the House about precisely what had been ordered.

[Gareth Snell (Stoke-on-Trent Central) (Lab/Co-op)]

I remember being here when that debate happened, and there was initially some confusion, but if such confusion reigned, why did the Government not oppose the motion at that time? It is all well and good to say now that it was unclear, but that was not the argument that was progressed at the time.

[Alex Chalk]

Respectfully, that is not right. My hon. Friend the Member for Chelmsford said at the time:

“I am deeply unclear—are you asking for publication of the final advice or of any legal advice in full that has happened during the entire negotiation? [Interruption.] With due respect, I am being asked for my vote regarding the motion on the Order Paper. Are you asking for what is on the Order Paper, which is,

“any legal advice in full”—

that is, during the whole negotiation?”—[Official Report, 13 November 2018; Vol. 649, c. 196.]

At that point, Mr Speaker rightly intervened to ask who my hon. Friend was referring to, and so it went on. The matter was not clear. Given the importance of these proceedings, and the potential impact on one or more individuals, is it not right that the House should be crystal clear about what is on the indictment, so to speak?

--- Later in debate ---

[Simon Hoare]

Well, the right hon. and learned Gentleman was tarting his letter around this place on Thursday, trying to get signatures in order to instigate contempt proceedings. He may not have put it in the envelope and got the stamp out, but he had the letter drafted. The Attorney-General had only been on his feet for about 20 minutes when the letter was handed in to say, “Let us have a contempt motion.” I have heard of a judge trying to come to the final judgment, but not when the prosecution or the defence are still trying to make their case. It begs the question what sort of a lawyer the right hon. and learned Member for Holborn and St Pancras made.

I have also heard the right hon. and learned Gentleman and the hon. and learned Member for Edinburgh South West (Joanna Cherry) make an incredibly powerful case in support of privilege. They did so during the course of the Investigatory Powers Bill, when the right hon. and learned Gentleman and I both sat on the Bill Committee, and he was absolutely right to talk about the sanctity of privilege. In that case, it was with respect to the lawyer-client relationship and the relationship between a journalist and their source. But it now seems that he wants to cherry-pick which bits of privilege are important.

[Gareth Snell]

Will the hon. Gentleman give way?

[Simon Hoare]

I will not because I am very conscious of time.

This is a parlour game. We are not going to play it. We are going to support the Government’s amendment and we are then going to move on to do what this country is expecting us to do—that is, to debate the exit of this country from the European Union with the sobriety and seriousness that the issue demands.