Withdrawal Agreement: Legal Opinion

Debate between Geoffrey Cox and Jacob Rees-Mogg

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

[The Attorney General]

And so it was under that particular Prime Minister! I was telling the hon. Gentleman the complete truth, as I am telling him it now. I have forgotten what the other question was—that was a betrayal of robing room talk. I am so taken aback by that question that I think I had better sit down.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

My right hon. and learned Friend has pointed out that much of what is being said is political as well as legal. Will he therefore set out for the House what penalties might fall upon this country if a future Parliament, which obviously cannot be bound, were to decide to resile from the commitments under the backstop?

[The Attorney General]

Well, my hon. Friend will know that as an Attorney General I simply could not give countenance to the idea that this country would break its international legal obligations. As I have pointed out to the House, there is a right for the United Kingdom to terminate this agreement. If fundamental circumstances change, in the view of the United Kingdom, it would attempt to resolve the matter within the joint committee and it would attempt to resolve it politically, but if, ultimately, with the sovereign right of this House and of the British Government at the time, the United Kingdom took the view that those fundamental circumstances had indeed changed, it would have an undoubted legal right to withdrawal from any treaty.

Let us be clear about these kinds of absolute interpretations of black-letter text. A sovereign state has the right to withdraw if a treaty is no longer compatible with its fundamental interests or, to put it a different way, if fundamental circumstances have changed. I would say that apart from that, of course this country could resile from its commitments, but it would be unwise and it would not be in the tradition of this country to do so. In those circumstances, it is perfectly true that the only remedies the Union would have would be to take countermeasures, and no doubt it would pollute the atmosphere for fruitful relationships between us, which is precisely why this country will never do it, and neither would the European Union.

Withdrawal Agreement: Legal Position

Debate between Geoffrey Cox and Jacob Rees-Mogg

Monday 3rd December 2018 Commons Chamber

[The Attorney General]

If the vote had been lost instead, precisely the same position would pertain, which is that the Attorney General and the Government would be faced with a clash of constitutional principle. Of course the Government wish to do all they can, which is why I am here today to answer as candidly and frankly as possible the questions of the House on any matter about which it wishes to ask, but if I am satisfied and convinced that any disclosure of the kind the House has asked for would be contrary to the national interest, I cannot comply with the House’s request. I urge the House to understand that I am doing everything I can, as are the Government, to fulfil the spirit of the request. No matter upon which this House inquires will be dressed up, disguised or in any way downplayed. Nothing—nothing—will be held back.

[Mr Jacob Rees-Mogg (North East Somerset) (Con)]

My right hon. and learned Friend has been enormously gracious in being willing to answer any question the House may have on legal matters, and there are many questions that we all have to ask that may not be easy to put in one short question, but unfortunately he does not answer the basic point about denying a motion passed by this House. Saying that in his view it is not in the national interest is not good enough. When the Government lose a vote, they must follow the will of this House under an Humble Address, according to all precedent. It is no longer a matter for the Government to judge; it has been decided by this House, which is a higher authority. I therefore urge my right hon. and learned Friend, in spite of his generosity in answering questions, to go back and release the advice asked for by this House.

[The Attorney General]

Well, of course, when a request comes from the quarter from which it has just come, I will always want to re-examine the assumptions that I have made, but I have to say to my hon. Friend that the problem here is that it cannot be right that the House, by means of such a motion, has the power, blind, to call for any matter that has been discussed in connection with the Government of this country. Where does it end? [Interruption.] Just wait a minute. I am trying to do my best. Where do the limits of this power end? Does it extend to Cabinet minutes? Does it extend to the papers of the secret intelligence service? Is the House, by means of this motion, to command any paper of any kind, central to the interests of this nation, without even being able to check that, by its release, it is causing, or might cause, severe damage to the public interest? I invite my hon. Friend to consider the implications of the absolute rule that he is talking about. It cannot be right and if one looks at previous versions—[Interruption.] If one looks at previous versions of “Erskine May”, one sees that the motion to return is confined to documents of public and official character. If there are good reasons of public policy why those papers should not be disclosed, then the House will either withdraw or rescind its motion.

In this case, I am convinced that to disclose any advice that might have been given would be fundamentally contrary to the interests of this country. [Interruption.] I say to Labour Members that there is no use baying and shouting. What I am trying to do is guard the public interest—that is all. It is time that they grew up and got real. If there were a single item that I thought might be politically embarrassing, I would have no truck with the idea that this advice or any that I might have been given should be disclosed. It is because the public interest is at stake. What part of that proposition is the Labour party incapable of understanding?

Fixed-term Parliaments Bill

Debate between Geoffrey Cox and Jacob Rees-Mogg

Monday 13th September 2010 Commons Chamber

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

Thank you, Madam Deputy Speaker, for giving me the opportunity to speak on this extremely important Bill. In the evidence that the Select Committee received, one of the distinguished experts who gave their opinion on the Bill described it as so fundamental that in other countries it would have required a constitutional amendment and possibly an entrenched majority of the House to pass.

It is a symptom of the lack of seriousness with which constitutional questions are sometimes treated in the House that the Bill is being rushed through with undignified haste, as appears to be the case, and I regret it. In the last Parliament I spent five years criticising the previous Administration and sometimes being a little harsh on the right hon. Member for Blackburn (Mr Straw) for the way in which he introduced constitutional Bills, but although he sometimes ignored the substance of consultation, he always preserved its appearance, and he did so with the charm and urbanity that is characteristic of him. In this case, we have had neither the substance nor the appearance. Every single constitutional expert who has given their opinion on the Bill has deplored the absence of consultation in which the House and those in the wider community have had an opportunity to participate.

I am troubled by the Bill. I do not understand why we should rush through the House so fundamental a constitutional alteration to arrangements that have stood us in reasonably good stead for generations. In this country our constitution has broadly served us well. We have had political stability for generations. It behoves the House to contemplate very carefully the wisdom of what it is doing, and to be sure that it is replacing the system that has served us well for so many generations with something better than what we had before. I do not believe that we have had the proper opportunity to consult widely and to consider carefully the Bill and the proposal that it puts forward.

Why would it not be possible, if the measure is important to the existence of the coalition, to propose a Bill that applied to this Parliament only, and thereafter to consider the longer-term question? I apply the same principle to some of the other constitutional changes that are being introduced by the Government. To my way of thinking, it is really quite likely that our constitution needs fundamental amendment. I have spoken in the House on several occasions, referring to the fact that I believe that the time may have arrived when we need to consider wholesale the constitutional arrangements of this country. But if we do that, we should do so in a way that dignifies with respect the history of our constitution; that treats it with sufficient seriousness and depth—that produces a constitutional convention, for example, or brings together men and women of good will across all the parties to decide upon the constitutional arrangements that may last 100 or more years and determine the democratic shape of our nation’s affairs. That is the way to introduce constitutional change, not in a piecemeal and fragmentary way, not incoherently, not because of immediate expediency, but because we have thought it through and because we know that what we seek to replace the former arrangements with will be better than what has gone before.

One of the things that troubles me most about the provision is that it removes the pivotal involvement of the monarch in decisions about the formation of a Government. It is not a light thing, however graciously Her Majesty may have placed her prerogatives at the disposal of the House, to remove some of the fundamental and inherent prerogatives that Her Majesty retains. In 1910, when Asquith approached George V and asked whether the King would be willing to make 300 new peers in an attempt to steamroller through a fundamental change to the constitution, the sovereign answered Asquith, “No. I will not allow you to push through so fundamental a change to our constitution in such a way unless you consult the people in a general election.” The right of the monarch to insist upon a Dissolution when some fundamentally antidemocratic change is proposed by a Prime Minister, is a fundamental safeguard in our constitution. It is something that the monarch, strong in the affections and respect of the British people, is uniquely able to do.

As Conservatives, I say to my right hon. and hon. Friends, we should think long and hard before we remove the cornerstone of our constitution—the discretion and prerogative of the monarch to safeguard our democracy. What is constitutional in this country is the Queen in Parliament, the Crown in Parliament. The mere fact that the Crown in Parliament is often silent and invisible and inactive does not mean that it is not an important cornerstone in our constitutional arrangements. The right of the monarch, either to decline a Dissolution or to insist upon a Dissolution, seems to me a fundamental safeguard. I am not saying that there may not be a case for change. What I am saying, and what I say to my right hon. and hon. Friends, is that it is not something for us as Conservatives simply to brush lightly aside, either for reasons of expediency or for reasons that are unnecessary. I say again: why would it not be possible to have a Bill that determines the length of this Parliament, if we needed such a Bill and if the good faith of the Prime Minister was not enough, and to consider the longer- term ramifications of the measure in a proper way?

The ability of the Prime Minister to seek a Dissolution is not simply the unfair, unprincipled, unattractive proposition that the Deputy Prime Minister proposed to the House an hour or so ago. The ability of the Prime Minister to go to the Queen to ask for a Dissolution can sometimes be done in circumstances very much in the interests of the nation. I am not saying that it is not sometimes abused. Of course I accept that it can be abused. But in other circumstances it may be vital. The Prime Minister may believe, for example, that it is required in the public interest that he should propose to Parliament a measure that was not in the governing party’s manifesto, but which, for reasons of principle, he believes he should put to the country. What does he do then? Let us suppose, for example, that a future Government proposed to join a united states of Europe. Let us suppose that a future Government, in the middle of its term, felt that it was necessary to put to Parliament a substantial surrender of power, so much so that it possibly placed the independent self-governance of this nation in question. Would not the Prime Minister be justified in those circumstances—I simply take that issue at random; there are many others—in asking the Queen for a Dissolution of Parliament? He has no manifesto commitment; this is a fundamental issue of principle. He is not seeking party advantage, but he believes in all conscience that he needs the approval of the British people. This Bill would prevent him from doing that unless he could gain the assent of 66% of the Members of the House. But he may believe, as a matter of conviction and conscience that it is vital that he should go to the people with so fundamental a proposal.

[Jacob Rees-Mogg]

Will my hon. and learned Friend give way?

[Mr Cox]

I will in a moment, if I may.

So again I say to the House, it is not simply a done deal. It is not an open-and-shut argument that fixed-term Parliaments are a good thing. The flexibility of our constitution, the ability of the Prime Minister to seek a Dissolution, is not always a bad thing; it can be a good thing. True it is that in recent times Prime Ministers have tended to abuse it. True it is that in recent experience they have perhaps lessened the dignity of their office by declaring elections in schools and by dithering over the timing of a general election. But that does not mean that we ought not to consider carefully a fundamental change to a fixed-term parliament. My plea today is that we do not regard this as simply a subordinate consideration. The way in which this has been introduced and the lightness with which the House is being expected to deal with this critical question troubles me.

In my submission, the existence of the Queen’s right to dissolve is in some circumstances very important. That may be why in Canada the prerogative of the Queen was preserved. Although they introduced a fixed-term parliament, the Canadians decided to retain the prerogative of the Queen to dissolve Parliament. We should think long and hard before we make a change of this kind. The role of the monarch is an important one and it is not one that we should simply discard.

I have a number of other observations about the Bill. I am troubled about the length—five years. That means that it postpones for five years, in perpetuity hereafter, the ability of the people of this country to pass their opinion upon the performance of a Government. That is potentially too long. The people of this country, who have had no opportunity to be consulted on this issue, are entitled to be consulted in greater depth than we have done hitherto, through the processes that this House has for the taking of evidence and through the ordinary channels of political communication.

I am troubled about the imprecision in what is intended in clause 2 as regards a motion of no confidence. Perhaps this can be tackled in Committee. The provisions seem to give rise to the realistic prospect that the courts may be tempted to invade on these matters. Let me say a few words about privilege. I agree with the right hon. Member for Blackburn that it is probably unlikely that the courts would wish to intrude on a matter so pivotal to the workings of Parliament as the Speaker certifying that there was a requisite majority under clause 2, but we cannot rule it out. As the Clerk of the Parliament has said, once we inscribe in statute, the courts are automatically engaged. It is their constitutional function to interpret a statute, and I cannot think of a single instance where the courts have declined to entertain an arguable interpretation in an arguable case.

It is true that the courts may say, after deliberation, and after appeal upon appeal, eventually in the Supreme Court, that they have declined to consider whether the certificate issued by the Speaker is indeed a valid certificate. However, this House has tried, on many occasions, to devise so-called ouster clauses seeking to foreclose the jurisdiction of the court on a judicial review, and I cannot think of a single case in which those clauses have prevented the court from saying, “Okay, we will get involved only in certain limited circumstances, but where it is, for example, a question of the precondition for the exercise of the discretion, we will get involved.” The Clerk gave a very good example when he pointed out that although clause 2 says that a certificate shall be “conclusive for all purposes”, that does not, in theory, prevent the court from inquiring into whether it is a certificate at all.

The courts have adopted precisely that analysis in the case of two or three statutes where the House has sought to exclude the jurisdiction of the courts and they have said, “No, it is our duty to scrutinise and to interpret the meaning of a statute, and where it is a question of whether the essential, fundamental preconditions are met for the exercise of a discretion, we will see whether they have been met.” It would be an act of voluntary self-restraint by the courts to deny themselves the jurisdiction to examine the statute to see whether the Speaker had complied. It is likely that they would exercise that voluntary self-restraint, but one cannot exclude the possibility that as time goes on—