Legal Advice: Prorogation

Debate between Geoffrey Cox and Dominic Grieve

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

I will say one thing for the Scottish National party and the hon. and learned Member for Edinburgh South West (Joanna Cherry) if I may. Whereas in the hon. Gentleman’s case, no shameless piece of cynical opportunism is left on the floor, the hon. and learned Lady is a lawyer and a Queen’s counsel, and she knows that it is the most puerile and infantile of criticisms to say about a lawyer whose advice has been upheld by courts right the way up to the Supreme Court that somehow or other he should be held culpable for that advice. The fact of the matter is that this advice was sound advice at the time. The court of last resort ultimately disagreed with it, but in doing so it made new law, as it was entirely entitled to do.

[Mr Dominic Grieve (Beaconsfield) (Ind)]

I am extremely mindful of the difficult task that my right hon. and learned Friend has as Attorney General in providing advice to Government, and I am sorry if his legal advice has been partially leaked, because he is entitled to give advice in private. Without that, he cannot do his work. I would also say that for him to get the law wrong in an area of difficulty is not necessarily something to be held to his discredit, but he may agree with me that one of the issues in this matter was one of not just law but propriety, and the propriety went to the unconstitutional or constitutional nature of the act of Prorogation itself, in view of the motivation of the Government for doing it. In those circumstances, I was struck by the fact that in the leaked document his opinion is referred to as believing it is constitutional, when I had understood from comments he made as far back, I think, as July, when Prorogation was first being mooted in order to achieve a no-deal Brexit on 31 October, that he considered that such an act would be unconstitutional. I wonder therefore whether this is not one issue that he ought to clarify.

[The Attorney General]

I know that my right hon. and learned Friend will understand that it is not right for the Attorney General or any Cabinet Minister to comment on leaks of matters that occurred within Cabinet, be they accurate or inaccurate—it would set a wholly undesirable precedent—but let me say this. It was being mooted some weeks ago that Parliament might be prorogued from the beginning of September or even earlier until 31 October. I say straightaway to him that if that had been the proposition, I could not have stayed in the Cabinet while it was done.

Prorogation (Disclosure of Communications)

Debate between Geoffrey Cox and Dominic Grieve

Monday 9th September 2019 Commons Chamber

[Mr Grieve]

I am afraid this classically illustrates the problem that we now have: these extraordinary utterances —pronouncements—from No. 10 Downing Street that bear absolutely no relationship with the operation and conventions of our constitution. It is impossible to know whether they are froth, whether they are Mr Cummings’s thoughts, or whether in fact they represent some settled policy view of Government, in which case this country is facing, frankly, a revolutionary situation in which this House has to exercise the utmost vigilance to ensure that our rights and privileges are not simply trampled upon.

I am very mindful of the fact that in this current crisis we are a divided country and a divided House, which pains me very much. I would like to work, even with those with whom I disagree such as some of my right hon. Friends on the Front Bench, to try to get this matter resolved in a way that is compatible with healing some of the divisions in our country, but that simply is not going to happen if the atmosphere of confrontation keeps being ratcheted up, slowly undermining the institutions that are the only props of legitimacy—that is the truth, for all of us—and in which everybody is happy to go into greenhouses and chuck bricks all over the place but expect the structure to provide some shelter afterwards.

[The Attorney General (Mr Geoffrey Cox)]

I have been listening with great care to my right hon. and learned Friend’s observations and part of his draft Humble Address troubles me. What legal right do the Government have to require their employees to give up private email accounts and personal mobile numbers? If there is no legal right—I imagine he would contend that there is not—how on earth would the Government enforce the Humble Address if they desired to do so?

[Mr Grieve]

These are Government employees. In the course of their work it is their duty to observe the civil service code and to comply with its requirements, including, I respectfully suggest to my right hon. and learned Friend the Attorney General, not using private means of communication to carry out official business.

--- Later in debate ---

[The Attorney General]

rose—

[Mr Grieve]

And beyond that—

[The Attorney General]

rose—

[Mr Grieve]

No, I will continue. [Interruption.]

[Mr Grieve]

I will give way to my right hon. and learned Friend in a moment.

In addition, it is a question about what this House requests. I am perfectly aware that sometimes I may say that the Government may be acting abusively, so I am the first to understand that there is a capacity for this House to act abusively. However, what is being asked for, and ought to be respected by any self-respecting Government employee, is that if they are asked to look and see whether they have carried out a communication, within the relevant request, that goes to their official work, they ought to be willing to provide it. It should not be a question of coercion; it should be a question of willingness. If we move from that, that will be the destruction of another convention under which this country has been run, and it will be greatly to our detriment.

[The Attorney General]

rose—

--- Later in debate ---

[Mr Grieve]

I give way to my right hon. and learned Friend the Attorney General.

[The Attorney General]

My right hon. and learned Friend has just refined the Humble Address to confine the request for personal mobile information and personal private accounts only to communications that ought to have been carried out as official business on official accounts. The difficulty with the Humble Address that I invite him to consider is that it is a blunt instrument and that, in truth, what this Humble Address requires is careful refinement so that it complies with legal rules. This Humble Address has no binding legal effect on individuals. It potentially has a binding effect on the Government, if they observe it, but not on individuals. There seems to be a risk that it will trespass upon the fundamental rights of individuals, as it is currently drafted.

United Kingdom’s Withdrawal from the European Union

Debate between Geoffrey Cox and Dominic Grieve

Friday 29th March 2019 Commons Chamber

[The Attorney General]

I understand the right hon. Gentleman’s point. I say straightaway that the answer is that this is the only right we have to an extension. If we move into next week without securing it, we take the chance that among those 27 leaders there will be vetoes.

The right hon. Gentleman asks me about European parliamentary elections. Plainly, the stated position of the European Union is that we would have to organise and stand in those elections if we went beyond 23 May. Some lawyers, of course, disagree with that stated position and say that it would not be necessary, but that is the stated position of the Union. The point, however, is that we have the opportunity here to embrace certainty.

What the right hon. Gentleman’s prescription would have us do is take a chance on the good will of the 27 member states of the European Union granting us another extension. The withdrawal agreement—everyone knows; the right hon. Gentleman knows—is an essential prerequisite for our departure from the European Union. That may be why he does not want to vote for it. The official Labour position is that it does not disagree or object to a clause or article of the withdrawal agreement. The country looking on must judge this. The Opposition do not object; they have not emitted a peep of disagreement with a single clause or article of that agreement, and their position today is that they intend to vote it down. What kind of cynicism is that?

The opportunity now is for us to embrace the certain legal right of an extension to 22 May. That will give us the opportunity to give certainty to the country and allow the process of reconsideration of the political declaration to take place.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I am most grateful to my right hon. and learned Friend for giving way. I entirely agree that, of course, apart from the dates of 12 April and 22 May, any other extension for a longer period would have to be agreed with the other 27 member states, but was it not made quite clear when the Prime Minister was at the last European Union summit that an extension to 22 May was what was described as a “technical” extension for the purpose simply of bringing about what had been agreed fully and completely in this House? If we extend to 22 May without reaching that conclusion now, we run the serious risk that we will not be able to extend further at that date if we have not completed all parts of both the withdrawal agreement and the political declaration, but if we were to go back now and ask for longer, it would be given to us if we wanted to consider other options.

[The Attorney General]

My right hon. and learned Friend is a very distinguished and able lawyer, but I never knew that he had a crystal ball. The fact of the matter is that the European Union has not agreed to grant any longer extension. It will be subject to the veto of any of the 27, and it would certainly be subject to clear signs in the House that there was a stable majority for an alternative solution, and a stable way to deliver it.

Withdrawal Agreement: Legal Opinion

Debate between Geoffrey Cox and Dominic Grieve

1st reading: House of Commons
Tuesday 12th March 2019 Commons Chamber

[The Attorney General]

What I hope will not be lost on my hon. and right hon. Friends is why the hon. and learned Lady is insisting and pressing upon them the facts and matters that she has just been drawing to their attention. It could be, I wonder, that there is some ulterior motive in her concern about the absence of a unilateral exit mechanism in all circumstances.

Turning to the opinion of Lord Anderson, who is always worthy of the most careful attention and the greatest of respect—as anybody of his distinction should be listened to—I take issue with some of his comments. For example—my opinion sets this out and other lawyers are commenting to that effect this morning—the hon. and learned Lady does no justice to the fact that these measures and improvements do facilitate, and mean that there is a reduction of risk in, our being able to prove and demonstrate bad faith or want of best endeavours. She says that we could not terminate, but there is in fact in my opinion a clear pathway to termination.

As the hon. and learned Lady knows, I wrote in my opinion that if in the circumstance that we got a declaration from the arbitral tribunal that there had been a lack of best endeavours, having regard to the accelerated pace of negotiation which this new agreement now imposes, we could then move to suspend our obligations, if we wished to do so, under the protocol. If that suspension was prolonged, we could invoke article 20 to argue that it was no longer necessary because the inaction of the European Union demonstrated that it must think that it was no longer necessary, and that could lead to termination. It is therefore not entirely true to say that there is no way in which the provisions could be terminated. I say to the hon. and learned Lady that suspension, in these circumstances, is as effective as termination, because the only way in which the EU could restore the position would be for it to come back to the negotiating table with genuinely new proposals.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I thank my right hon. and learned Friend for his statement. I have no reason to disagree with his conclusion in paragraph 19 of his opinion, and I commend him for standing up for his office and speaking truth to power. However, I have one query about paragraph 7 of his advice, in which he describes the joint instrument as representing

“materially new legal obligations and commitments”.

He will of course be familiar with article 31, paragraph 2 of the Vienna convention, which says that such an instrument can have legal force and be binding only in the sense that the parties cannot later alter or deny what they have agreed and that it is not a treaty in itself. In those circumstances, is it not the case that the breaching of the best endeavours obligation in itself makes no difference? The only difference is if there is bad faith, and that in fact was contained in the original agreement that we signed.

[The Attorney General]

I do not agree with my right hon. and learned Friend, although I listen most carefully to him, as ever. The best endeavours duty was in the withdrawal agreement originally, but what this does is to firm and strengthen the context in which an allegation of best endeavours or bad faith would be made, because it sets an accelerated pace and commits—I am sure that my right hon. and learned Friend has looked or will look at this—the EU to specific operational commitments about how to deliver that obligation. Those are new agreements, and they are couched in the language of agreement. He knows, as a very distinguished lawyer, that one cannot always trust the label; one has to look at the substance.

Withdrawal Agreement: Legal Position

Debate between Geoffrey Cox and Dominic Grieve

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

I ask the right hon. and learned Lady to accept that I will give this House a stark, uncompromising and completely frank view on any relevant point of law. I suggest that, if I had given advice, there would be no real significance in that advice being disclosed, because this House has the opportunity to ask me directly.

[Mr Dominic Grieve (Beaconsfield) (Con)]

My right hon. and learned Friend is to be commended for his statement and for the document that has been produced, which I have to say from my own experience is rather fuller than any advice he might ever have been called upon to produce. First, it might be helpful to the House if he took this opportunity to confirm that there is nothing in this document that is incompatible with any advice that he gave to the Government? I would not expect him to be in a position to endorse any such document if it were at variance in that way. Secondly, turning away from that first principle to the content, might he also wish to comment on the provisions specific to Northern Ireland in paragraphs 25 to 29, which appear to show quite clearly that under the protocol it would be possible to end up with a situation in which there were in fact checks and controls on good passing between Northern Ireland and the rest of Great Britain?

[The Attorney General]

I am grateful to my right hon. and learned Friend. He will understand that if I were to make that express confirmation, I would by that means be disclosing what advice, if any, I had given. I hope that the House will understand—unless it is to be supposed that I would tailor my advice according to my audience, which I assure the House I would not do—that there is no matter on which hon. Members could ask me a question on which I am likely to have given a different answer to any other party who might have asked me about it in the course of these negotiations. In all candour, therefore, I can say that all the House has to do is ask.

In relation to my right hon. and learned Friend’s second question, it is true that there would be regulatory divergences—as there are within sovereign states throughout the world—between one part of the sovereign territory of the United Kingdom and another, but those divergences could be kept to a minimum. They involve, on my investigation, some 15 forms of product in respect of which checks might have to be carried out at the border. Those 15 forms of product are largely phytosanitary goods in respect of which checks are already carried out in many cases at the ports of Northern Ireland. Therefore, while that border would exist—I find that distasteful myself—the issues are nevertheless mitigable, and the question again is whether that feature should lead us to decline this deal, which I firmly believe is the best way of ensuring that we leave the European Union on 29 March. That is the solemn responsibility that this side of the House—and some on the Opposition side—believed that we had. This is the deal that will ensure that that happens in an orderly way and with legal certainty.

European Union (Withdrawal) Bill

Debate between Geoffrey Cox and Dominic Grieve

Committee: 6th sitting: House of Commons
Tuesday 12th December 2017 Commons Chamber

[Mr Grieve]

Indeed. To that extent, it will, as I understand it, have sufficient flexibility and will, I hope, also be able to command enough confidence. These are difficult issues, but, as I say, I am mindful of the fact that my right hon. and hon. Friends on the Treasury Bench, having been asked to consider this, have gone and done it in a conciliatory and sensible spirit. For that reason—we were talking earlier about trust—this is one matter on which I have trust in the way that they have responded and that this will be sufficient for the work we have to do.

In the longer term, this issue will not go away, and I feel strongly that this House ought to be thinking about how it can assert itself again to take a better system of scrutiny than that which we have at the moment. Heaven knows, I have sat through enough of these Committees to know their deficiencies. It is also noteworthy that, although some jurisdictions have specialist committees linked to each of their select committees to consider legislation, we do not—something I have always found mystifying. I also served for four years on the Joint Committee on Statutory Instruments. It was a very interesting Committee, but, again, it did not really have the necessary bite to correct what were sometimes egregious howlers, of the kind that my right hon. Friend the Member for Wokingham pointed out.

I turn now to the other way this matter can be looked at: by trying to constrain the powers the Government are taking. Of course, the vast majority of the amendments I have tabled along with my right hon. and hon. Friends concern constraining those powers. For example, amendment 2, which has been mentioned, would use a process first introduced in 2006 in seeking to constrain the powers set out by applying the concept of reasonableness and proportionality. Another example is my amendment 1, which would leave out the words

“(but are not limited to)”,

and so limit the deficiencies to the list of powers and functions set out in clause 7(2).

The Government have here an enormous menu of options by which the powers in clause 7, and indeed elsewhere in the Bill, can be constrained. I do not want to repeat some of the things we have said in earlier sittings of this Committee. The question for me is: how will the Government respond? There is a legitimate argument from the Government, which I have heard and listened to, that they ought to go away and consider the variety of amendments—mine are not the only ones; a great range of amendments have been tabled from across the House, and each, in my judgment, is valid. The Government have to come up with a response on how they can constrain the powers set out. At the moment, my opinion is that these powers are far too stark, far too great and not necessary. My right hon. Friend the Member for West Dorset (Sir Oliver Letwin), to whom I also always listen very carefully on these matters, approaches this matter from a slightly different angle, so I was interested to hear him say that he thought the powers were excessive and unnecessary—I hope that I do not paraphrase him wrongly.

In those circumstances, the Government have to think again. I do not want to be particularly prescriptive, because it seems to me that there are a range of ways in which this could be done. I want to hear from Ministers this afternoon broadly how they will respond to the amendments and give some thought to coming back on Report with a constraint on the powers set out. There are probably two ways this can be done—indeed, we could do both. The first is to accept some of the amendments. On my amendment 1, for example, I continue to be bemused that, in view of the extensive nature of subsection (2)(a) to (g), it is in fact necessary to provide a further power. I think that there are excessive jitters within Departments. Somebody ought to have the courage to say, “Find me some examples that fall outside the scope,” and if they can, they should add those to the list and take out the unlimited nature of the powers at the top of the clause.

I accept, picking up something that was said earlier in Committee, that the word “deficiency” provides some constraint. I take the view that if an attempt were made to extend the use of the powers outside of correcting a deficiency, it could be challenged in court, but we do not want to end up with court challenges. I say to Ministers that that would be the worst possible place to end up in January 2019—the clock ticking and people claiming the Government have used excessive powers. That would contribute to chaos rather than certainty, so the issue needs to be addressed.

The second issue, which has been highlighted by some of the other Members who have spoken, is whether the Government can sensibly identify areas of particular concern to the House, such as children’s rights, environmental law or equality rights, that can be safely cordoned off—or, in the case of children’s rights, specifically inserted—to reassure the House that these powers will not be used for a purpose other than that which was intended. That seems to me to be the challenge.

For those reasons, I am going to listen very carefully. I want to avoid putting any of my numerous amendments to the vote, but that will depend first on the answer that I receive from the Dispatch Box this afternoon and secondly on whether the answer is sufficiently clear and shows a willingness by the Government overall—we have debated this on previous days—to go away and consider the matter properly, and then come back with a sensible proposal on Report. I should be happy to wait until then, because that is exactly what the process of legislation is about—waiting to see what the Government come up with—but I put them on notice that if what they come up with is inadequate, the debate on Report will allow us to re-table amendments, or table them in a slightly different form. If necessary, we will vote on them, and I will vote to ensure that the powers are not as they currently appear. That is the challenge to the Government, and I expect a response. Provided that I receive that response, I will sit on my numerous amendments this afternoon.

Let me say one more thing, about a matter that has not been much touched on. My new clause 82 deals with tertiary powers. This is a little bit technical, but I do not like tertiary powers. I do not like them one little bit. They are, of course, powers that ultimately do not come to this place at all. I want to find out this afternoon what tertiary powers are actually for, and I want the Government to give some examples to justify their appearance in the Bill. I confess that I found it slightly difficult to see why they had crept in. One or two people have suggested some possible reasons, but I should like to hear rather more this afternoon; otherwise, again, I put the Government on notice that I shall return to this matter on Report. I do not think that the world would come to an end if they were to disappear from the Bill, although my hon. Friend the Minister may persuade me otherwise. As a result of the Government’s approach, we have already made great progress on triage. I am grateful to them for that, because it is exactly how the Bill should be dealt with. However, I want to see some progress on constraining the powers and making them less extensive, because I think that they are unnecessarily broad.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

As ever, I am considering what my right hon. and learned Friend is saying with enormous care. Much of it has enormous force and makes a great deal of sense. However, if his objective in amendment 2, which inserts proportionality and reasonable tests, is to avoid resort to the courts, I should point out that the insertion of a clause of that kind is more likely to encourage resort to the courts than to deter it.

[Mr Grieve]

My hon. and learned Friend is right. Of course it is true that, although such measures have a history of being introduced into legislation, amendment 2 raises the risk of legal challenge, because ultimately these issues can usually only be resolved in courts.

[Mr Cox]

More often.

[Mr Grieve]

Such measures may act as a constraint, but once Ministers have taken the plunge, there will not be much that we can do. That is precisely why there is a menu of options. I personally would prefer Ministers to do a proper exercise of asking themselves whether they really need individual powers in their current extensive form. That would be the easier course, and it would provide much greater certainty and avoid the lawyers, although it might do my hon. and learned Friend out of a brief fee or two, but lawyers on the whole ought not to benefit from defective legislation in so far as possible. I am grateful to the House for listening, and I look forward to hearing the response of my hon. Friend the Minister.