Oral Answers to Questions

Debate between Geoffrey Cox and Nick Thomas-Symonds

Thursday 16th January 2020 Commons Chamber

[The Attorney General]

I am most grateful to my hon. Friend and, if I may, I offer him a word of congratulation on his recent knighthood. I am delighted to welcome him in his new incarnation as Sir Bob.

My hon. Friend will know I agree with him that, as we leave the European Union, the country and the world should know that this nation stands for liberty, freedom and human rights. One mark of our standing for those values will be our continued vigorous participation in the Council of Europe and our subscription to the convention on human rights. That should not mean that we do not turn a critical eye to elements of the human rights structures in our country, and we will look at those in the time to come.

[Nick Thomas-Symonds (Torfaen) (Lab)]

Although I welcome most of what the Attorney General has just said, the Tory manifesto says:

“We will update the Human Rights Act and administrative law”.

Yesterday, at Prime Minister’s questions, the Prime Minister said that judicial review should not be

“abused to conduct politics by another means or to create needless delays.”—[Official Report, 15 January 2020; Vol. 669, c. 1019.]

Can the Attorney General tell us which recent court decisions have been about conducting politics or causing needless delays?

[The Attorney General]

It has been an enormous pleasure to appear opposite the hon. Gentleman. He is a distinguished historian, a distinguished politician and an experienced barrister.

[The Attorney General]

Of course it will.

The hon. Member for Torfaen (Nick Thomas-Symonds) knows I will not be drawn into commenting on individual cases, but what I can say is that there are widespread concerns throughout our society and throughout this House as to whether judicial review is sometimes being used in a manner, often through frivolous applications, that needs better focus and care in its procedures and tests. We will have a look at that to see whether the elements of judicial review could be better designed to serve its purpose of holding the Government to account for their administrative decisions.

[Nick Thomas-Symonds]

I always welcome compliments, but I did not detect an answer to the question from the Attorney General. He often says that he is a lawyer first and a politician second. He knows that Governments are sometimes vindicated in the courts and that they also face decisions from the courts that are uncomfortable. The answer is never to attack the independence of our judiciary or our courts system. There is a real worry that the Prime Minister is seeking some sort of vengeance because he did not like the Supreme Court’s decision that his prorogation of Parliament was unlawful. Does the Attorney General agree that if we are to weaken judicial review, it will be not the Prime Minister who loses out, but all our constituents whose rights to hold public authorities to account are watered down?

[The Attorney General]

There is no question of weakening judicial review. The question is whether we can make it more efficient and streamlined, and more focused on the purpose: holding the Government to account for their administrative decisions. Even the hon. Gentleman will have to accept that some judicial review cases have been brought that should perhaps never have been started—often they are indeed thrown out by the courts—and we can prevent the courts being clogged up with those applications. So I say to him: let us wait and see. The Government are looking at this extremely carefully, but I want him to understand one thing: there is no question of backsliding upon the fundamental principle of the independence of the judiciary.

Oral Answers to Questions

Debate between Geoffrey Cox and Nick Thomas-Symonds

Thursday 3rd October 2019 Commons Chamber

[The Attorney General]

I have not seen the response to which the hon. Gentleman refers, but I can certainly confirm that the Government will comply with the law. I am not convinced that the Prime Minister said anything contrary to that; I would have to look at Hansard.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I have the European Union (Withdrawal) (No. 2) Act 2019 in front of me, so perhaps the Attorney General can confirm his interpretation of it. The Act is clear that, if this House has not approved a deal or if it has not approved leaving with no deal, the Prime Minister

“must seek to obtain from the European Council an extension”

in the terms set out in the Act. Will the Attorney General confirm that that is what this Act of Parliament requires?

[The Attorney General]

The hon. Gentleman has read it out, and he does not need any confirmation from me. He is a superbly competent lawyer—[Interruption.] So I am told by others on his side of the House. The reality is that the Government will comply with the law.

[Nick Thomas-Symonds]

I am afraid that confirmation is required from the Attorney General. Let me explain why. We keep being told that the Government will comply with the law, yet the Prime Minister goes around saying that he would rather be dead in a ditch than apply for the extension that he is required to seek under the Act. Does the Attorney General not realise that the Government’s ambiguous position towards the rule of law is damaging our justice system, our society and our international standing? Why does the Attorney General just stand by and let that happen?

[The Attorney General]

Because I am quite convinced and completely satisfied that this Government will obey the law.

Legal Advice: Prorogation

Debate between Geoffrey Cox and Nick Thomas-Symonds

Wednesday 25th September 2019 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

I congratulate the hon. and learned Member for Edinburgh South West (Joanna Cherry) on securing the urgent question and for her work on this matter. Yesterday’s decision of the Supreme Court—I give credit to all those who brought the cases—was the most damning judicial indictment of a Government in modern times: that the decision to advise Her Majesty the Queen to prorogue Parliament was unlawful.

This Government stand in shame, tendering illegal advice to our monarch and not even able to uphold that most basic and important of principles: abiding by the rule of law. What we know from yesterday’s leaked document is that the Attorney General said that his advice on the question of the law was that this was

“lawful and within the constitution”,

and that any accusations of unlawfulness were “motivated by political considerations”. If that is in any way accurate as to his full advice, he was wrong on both counts. His “close interest” simply was not enough.

I will ask the Attorney General a number of questions. Can he confirm why the Government gave no witness statement to the Court? Indeed, the Court was left in a position where it said:

“No justification for taking action with such an extreme effect has been put before the court”.

Why not? The Attorney General talks about respecting the decision of the judges, but the Chancellor of the Duchy of Lancaster was on the radio this morning saying that he disagrees with the decision. He should tell us which parts of the judgment the Government disagree with. May I give the Attorney General a simple piece of advice for his considerations about the publication of this advice over the next few days—a simple suggestion? Just publish it and make it open to Parliament and the public.

On this Attorney General’s watch, the Government have been found in contempt of Parliament. Now they have been found in contempt of the law. Does he not accept that he does not have a shred of credibility left?

[The Attorney General]

I do not know whether in the hon. Gentleman’s practice at the Bar he felt that just because he had given advice that might not have been upheld by a court he had no credibility. That is an absurd and ridiculous proposition. Furthermore, it was advice that was agreed with by the first instance court in Scotland and by the Lord Chief Justice of England. Is the hon. Gentleman calling for his resignation as well? Is he calling for the resignation of the Master of the Rolls? Is he calling for the resignation of the President of the Queen’s bench division? Is he calling for the resignation of Lord Doherty? [Interruption.]

Oral Answers to Questions

Debate between Geoffrey Cox and Nick Thomas-Symonds

Thursday 11th April 2019 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

The Attorney General’s recent podcast is clearly quite popular, because I have been listening to it as well, particularly his comments on the legal implications of leaving the European Union. He said that

“we have underestimated its complexity. We are unpicking 45 years of in-depth integration.”

Which of his Government colleagues did he have in mind when he made those comments?

[The Attorney General]

I have been saying this since 2016, as the Hansard record will witness, and indeed most recently on 12 March. I take the view that we need to take a complex and careful view of how it is necessary for us to extricate ourselves from 45 years of legal integration. The withdrawal agreement does justice to those complexities. It settles matters at a complex level, and that is precisely why it is necessary for us to leave the European Union. I urge the hon. Gentleman to vote for it.

[Nick Thomas-Symonds]

We know that is the Attorney General’s view, but I did not detect an answer to my question in all that, so let us try asking about something else the Attorney General has said about Brexit, namely:

“It needs a hard-headed understanding of realities.”

When the majority was lost in the snap election, there was no sense of reality when the Prime Minister should have spoken out. The Attorney General was sent on a fruitless pursuit to reopen the withdrawal agreement, which was always impossible, and four months have been spent refusing to accept the reality of not being able to get the withdrawal agreement through this House. Does the Attorney General not agree that it is the failure of the Government to accept reality that has led to the mess we are in?

[The Attorney General]

No, I do not accept that. The withdrawal agreement was the product of two years of exhaustive negotiation. It settles citizens’ rights for millions of British citizens in Europe as well as for EU citizens here. It fulfils the financial obligations to the European Union. It is a complex settlement that requires to be signed before we can leave. I do not accept that it was unrealistic to attempt to get the fruits of that agreement agreed in this House. In truth, as the hon. Gentleman knows, if we are to leave the European Union it is a necessary precondition of our doing so.

Withdrawal Agreement: Legal Opinion

Debate between Geoffrey Cox and Nick Thomas-Symonds

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

[Nick Thomas-Symonds (Torfaen) (Lab)]

I am grateful to the Attorney General for his statement and for advance sight of it.

The Attorney General made it clear in his original advice of 13 November on the backstop protocol that:

“In international law the Protocol would endure indefinitely until a superseding agreement took its place, in whole or in part”,

and he was right, because article 178 of the withdrawal agreement is clear that the remedy of suspension of obligations is only ever meant to be temporary to secure compliance to the agreement and not as a gateway to a full exit.

So people quite rightly ask now what has changed. In her Strasbourg statement the Prime Minister said the joint interpretative instrument makes three changes. She said, first, that the UK can challenge the EU in an arbitration panel if the EU is found in breach of good faith and suspend the backstop. But that was already in article 178 of the withdrawal agreement; it is not new. Secondly, the Prime Minister said there is a legal commitment that whatever replaces the backstop does not need to replicate it, but the January letter of Presidents Tusk and Juncker said:

“Any arrangements which supersede the Protocol are not required to replicate its provisions in any respect”;

it is not new. Thirdly, the Prime Minister said it entrenches in legally binding form the commitments made in the exchange of letters with Presidents Tusk and Juncker in January, but on 14 January the Prime Minister told this House:

“My right hon. and learned Friend the Attorney General has also written to me today confirming that in the light of the joint response from the Presidents of the European Council and the Commission, these conclusions ‘would have legal force in international law’.”—[Official Report, 14 January 2019; Vol. 652, c. 824.]

That is not new either.

I am going to take the Attorney General at his word, because he said in his Mail on Sunday interview:

“I will not change my opinion unless I’m sure there is no legal risk of us being indefinitely detained in the backstop.”

I am going to be fair to the Attorney General: he has not changed his opinion. Let us read his advice to this House at paragraph 19:

“the legal risk remains unchanged that if through no such demonstrable failure of either party, but simply because of intractable differences, that situation does arise, the United Kingdom would have, at least while the fundamental circumstances remained the same, no internationally lawful means of exiting the Protocol’s arrangements, save by agreement.”

I say to the Attorney General that paragraphs 15 to 19 of his advice constitute seven sentences that destroy the Government’s strategy of recent weeks—that sink the Government’s case that they had any chance of securing a right, under international law, to unilaterally exit the protocol’s arrangements. We have gone from having “a nothing has changed” Prime Minister to having “a nothing has changed” Attorney General.

In fairness to the Attorney General it is not just his view: it is the view of a number of other respected lawyers, including Professor Philippe Sands, Professor Sir David Edward and the Government’s own former counter-terror watchdog, now Lord Anderson QC. The Attorney General knows that speaking about reasonable endeavours and bad faith is one thing, but he can confirm the reality, which is that the new documents do nothing about the situation when the talks with the EU are at a stalemate not because of bad faith, but simply because both sides cannot reach an agreement.

Proving bad faith is extraordinarily difficult, and the Attorney General points that out in paragraph 16 of his own advice. The strongest remedy in this withdrawal agreement, even with this document, remains a temporary suspension. Indeed, we need only look at his own legal advice to see that, at paragraph 9, which speaks of

“suspension of all or parts of the Protocol, including the backstop, until there is satisfactory compliance.”

Trade talks can break down for a variety of reasons. For two parties to act on the basis of their own interests is not bad faith, and the Attorney General knows it. In these circumstances, despite any assurances about the temporary nature of the backstop, the reality is that it can endure indefinitely. Ninety-two days after the Prime Minister abandoned the first meaningful vote, in this Attorney General’s view

“the legal risk remains unchanged”.

What the Attorney General was asked to do, and what the Prime Minister promised in this House on 29 January—to change the text of the withdrawal agreement—simply is not possible. He is a lawyer; he is not a magician. Does not this whole episode of recent weeks show that when national leadership is required, this Prime Minister, as always, puts party before country?

[The Attorney General]

The hon. Gentleman asks me about my opinion. He knows that my opinion is that there is no ultimate unilateral right out of this arrangement. The risk of that continues, but the question is whether it is a likelihood, politically. One thing that we did not hear from him is what the Labour party’s position is on the backstop. Does they accept the backstop? Do they think it is a good thing? If they think it is a good thing, why on earth are they criticising it? Or is this just the usual political opportunism that one expects to hear from the Front Bench of the Labour party?

The hon. Gentleman says to me that there is nothing new in this agreement, but that is not so, and some of the authorities that he has quoted are saying that this morning. There are material new obligations—for example, in relation to alternative arrangements. There is now a heavy emphasis upon a swift and expedited track to negotiate them, and it would be unconscionable if, having made that emphasis and having said that time was of the essence, the European Union simply refused to consider or adopt reasonable proposals relating to alternative arrangements. That is new. What this document does is address the risk that we could be kept in the backstop by the bad faith and deliberate manipulation of the Union. This makes significant reductions in that risk.

I say to the hon. Gentleman that it would be a good thing if we could hear from the Labour party just occasionally not only political shenanigans but some sincere engagement with the real issues that this withdrawal agreement now raises. The question now is: do we assume our responsibilities as a House and allow not only this country—yearning as it is for us to move on—but the entire continent of Europe to move on? To do that, the time has come now to vote for this deal.

Oral Answers to Questions

Debate between Geoffrey Cox and Nick Thomas-Symonds

Thursday 7th March 2019 Commons Chamber

[The Attorney General]

I think the hon. and learned Lady knows that the Secretary of State has corrected those comments. I do not think it is necessary for me to advise her on the various matters that she suggests. I believe firmly that the Secretary of State will not have intended any offence and she has, in any event, corrected those remarks.

[Nick Thomas-Symonds (Torfaen) (Lab)]

It is widely reported that, should the Attorney General have a more successful trip to Brussels tomorrow than he has managed so far this week, he will be putting any concessions that he receives on the backstop to a star chamber of Eurosceptic lawyers—one QC, six Tory MPs and one Democratic Unionist party MP. Why are there no MPs from other parties in the star chamber?

[The Attorney General]

I assure the hon. Gentleman that I shall be putting them to the star chamber of this House. I am delighted that there are eight very distinguished Members who are going to sit in judgment on my opinion, but I expect and welcome the judgment of all Members of this House, on both sides of it.

[Nick Thomas-Symonds]

I really hope the Attorney General appreciates the fundamental concerns here, because it now seems that as well as being part of the negotiating team he is advising the Government on the outcome of the negotiations. It seems he will then bring his proposals to the star chamber and then he will have to answer to this House. First, will he commit to publish any advice that he gives the Prime Minister on any concessions that he receives? Secondly, will he record what he has said in the star chamber, so that all MPs can make a decision on Tuesday on exactly the same information?

[The Attorney General]

The hon. Gentleman is labouring under a misconception. I am not appearing before any star chamber, either on this side of the House or the other. The star chamber I am appearing in front of is this House. I will account to this House. I am not going to be appearing in front of any star chamber, although it is composed, as I say, of exceptionally distinguished people. Any Member of this House can come and see me if they like and I shall account to this House. I say to the hon. Gentleman: do not grieve because I shall, I assure him, be wholly open about my advice. He asks me whether I will commit to publishing it. I will commit now to saying to this House that I shall publish my legal opinion on any document that is produced and negotiated with the Union.

Oral Answers to Questions

Debate between Geoffrey Cox and Nick Thomas-Symonds

Thursday 13th December 2018 Commons Chamber

[The Attorney General]

The impact of social media on the integrity and fairness of the trial process is obviously of considerable importance, and we do need to grapple with it. As my hon. Friend knows, we have a call for evidence on social media, and I am currently studying the responses to it.

[Nick Thomas-Symonds (Torfaen) (Lab)]

On the subject of contempt, the Attorney General was meant to disclose the full and final legal advice on the withdrawal agreement. What was actually disclosed was a letter to the Prime Minister dated 13 November exclusively on the legal effect of the protocol on Ireland and Northern Ireland. Is the Attorney General seriously saying he did not advise on the remainder of the withdrawal agreement?

[The Attorney General]

As the hon. Gentleman knows, his party colleague the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) refined and defined the request, which was for the final and full advice that was given to the Cabinet, and that is what he has had.

[Nick Thomas-Symonds]

The letter refers simply to the legal effect of the protocol on Ireland and Northern Ireland, but let me then ask the Attorney General this: the Prime Minister said last night on the steps of Downing Street that she is seeking “legal and political changes” to the withdrawal agreement and the backstop, so as a matter of honour if nothing else, if the Attorney General advises on any changes or additions that the Prime Minister brings back, will he disclose that advice to this House?

[The Attorney General]

As the hon. Gentleman knows, the principle of the convention applies and must be upheld. Of course the Government will consider very carefully, particularly in the light of the House’s expressed wish for assistance on these matters, what assistance they and I as Attorney General can give.

Withdrawal Agreement: Legal Position

Debate between Geoffrey Cox and Nick Thomas-Symonds

Monday 3rd December 2018 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

I am of course grateful to the Attorney General for his statement, and for advance sight of it, but all Members who are asking questions are at a major disadvantage, because they have not read the legal advice on which the statement is based. That is totally unacceptable when aspects of the Attorney General’s advice have been selectively leaked to the press over the weekend. For example, it has been reported that in a letter to Cabinet Ministers last month, the Attorney General said, in respect of the backstop arrangement,

“The protocol would endure indefinitely”

if trade talks broke down. In his statement, the Attorney General talked about political factors that might, in his view, make the backstop temporary, but in reality, that is not the legal position. Perhaps he can confirm that the legal position is as set out in the letter—that the protocol will “endure indefinitely” if the trade talks break down.

On 13 November in this House, my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer)—the shadow Brexit Secretary—and I were very clear on what was being sought: the final, full advice provided by the Attorney General to the Cabinet on any completed withdrawal agreement should be made available to all MPs in good time for the vote on the deal. Offers short of that, including of the Attorney General’s statement today and of a summary made by the Government, were rejected, and the House unanimously passed a motion to that effect. [Interruption.] “Playing games,” shouts the Chancellor. On 13 November, the Conservative party could not get one of its MPs to vote against the motion—not one.

The document that has been produced is, in the Attorney General’s own words, a legal commentary, produced with his oversight and approval. It is not the final legal advice to the Cabinet. Frankly, the explainer produced alongside the withdrawal agreement was longer and more detailed than this document. Is not the reality that the Government do not want MPs to see the full legal advice, for fear of the political consequences?

There is no point whatever in trying to hide behind the Law Officers’ convention. The ministerial code and “Erskine May” are very clear: Ministers have the discretion, under that convention, to make advice available in exceptional circumstances. What circumstances could be more exceptional than these? The economic, political and constitutional integrity of our country is at stake.

I quote paragraph 82 of the legal commentary:

“The Agreement does not contain any provision on its termination. In the absence of such a provision, it is not possible under international law…to withdraw from the Agreement unilaterally.”

A straight question to the Attorney General: can he direct me or the House to any other international treaty to which the UK is party that it has no unilateral right to terminate? Can he even name one?

Furthermore, articles 1.4 and 2.1 of the backstop protocol are clear that its provisions

“shall apply unless…they are superseded, in whole or in part, by a subsequent agreement.”

[Interruption.] No, the “in whole or in part” bit was not commented on in the statement, actually. Put simply, that means that parts of the backstop could become permanent, even in the event of a trade deal being agreed. I ask the Attorney General directly: what is his view on which parts of the backstop arrangement in this protocol are most likely to become permanent?

May I raise with the Attorney General the issue of the impact on the Good Friday agreement? Page 306 of the withdrawal agreement refers to the need for the protocol to be implemented so as to

“maintain the necessary conditions for continued North-South cooperation,”

including the conditions for possible new arrangements in accordance with the 1998 agreement. So can the Attorney General tell the House, in his view: first, which new arrangements he believes would be in accordance with the 1998 Good Friday agreement; and, secondly, which arrangements he believes would not be in accordance with it?

In the first instance, it will be for you, Mr Speaker, to rule on whether there has been an arguable case of contempt for what we on the Opposition Benches believe to be a failure to comply with the motion of 13 November. For the sake of our economy, our jobs and our futures, all possible information should be made available to Members of this House. The Government should do the right thing and make the full advice available. With so much at stake for all our constituents and with eight days to go before the vote on the deal, this House and this country deserve better from this Government.

[The Attorney General]

First, let me say that the hon. Gentleman has far better than any advice I may or may not have given to the Government: he can ask me. All he has to do is ask and he will receive, because I will give him a frank answer. [Interruption.]

Oral Answers to Questions

Debate between Geoffrey Cox and Nick Thomas-Symonds

Thursday 6th September 2018 Commons Chamber

[The Attorney General]

This has been a particular success story. The current numbers, as I said earlier, show that these agreements have realised £650 million in penalties. They have been applied to some of the biggest multinational corporations in the country, ranging from banks to major supermarkets. They are a valuable tool, and I hope to see an increased use of them, but they have to be used carefully, because plainly they are not a substitute for prosecution; they can only be used in the right circumstances where, according to the code, they are the appropriate action.

[Nick Thomas-Symonds (Torfaen) (Lab)]

I welcome the Attorney General to his role and wish him well.

An essential part of our action against economic crime is tough action internationally, including a public register of beneficial ownership of companies based in the overseas territories, yet in a debate on 1 May, the Attorney General spoke out about that, saying about publicity:

“All it will mean is that the money goes to where it is darkest”.—[Official Report, 1 May 2018; Vol. 640, c. 203.]

Has the Attorney General now changed his mind?

[The Attorney General]

I am disappointed with the hon. Gentleman. As we get to know each other, he will realise that that is not the sort of approach I would take. Let me explain to him what I said, and if he reads Hansard, he will be able to check it. I said that the means being proposed in the House at that time—namely the imposition of legislation from the centre—offended the devolved settlement that had been given to the Cayman Islands. I fully support the substantive policy of the Government, which is the increase of the use of public registers. I raised the subject at the “Five Eyes” conference last week and urged other countries to follow our example.

[Nick Thomas-Symonds]

I am always sorry to disappoint, but I have to say to the Attorney General that I have read Hansard very thoroughly and the numerous interventions he made about that. I was disappointed with the main thrust of his answer. If the Government are serious about transparency of our overseas territories, surely the Attorney General must be enthusiastic about it. Can he completely recant what he previously said?

[The Attorney General]

I repeat: the fact of the matter is that I did not say what the hon. Gentleman says I said. I objected on a constitutional ground that a devolved settlement was being overridden. I fully support the transparency policy of the Government, and if he looks more closely at Hansard—I can take him through it—he will see that I am right.