Privilege (Withdrawal Agreement: Legal Advice)

Geraint Davies Excerpts

Tuesday 4th December 2018 Commons Chamber

[Tom Brake (Carshalton and Wallington) (LD)]

May I start by praising the Attorney General for spending more than two hours answering questions, but may I also gently chide him for the manner in which, occasionally, his style of delivery descended rather into Vaudeville? Finger-pointing, faux bonhomie and expansive arm gestures may work in court, but perhaps he might like to leave those at the Bar of the House.

The Leader of the House referred to an arcane procedure and Government Members have talked about Opposition Members playing parlour games. The arcane procedures and the parlour games to which the Government Members refer are about holding the Government to account on a matter of contempt. Arcane they might be, but, clearly they are essential as well. Members will know that Parliament’s bible, “Erskine May”, makes it very, very clear that the Government’s actions are in contempt. The Government’s refusal to release the advice is an act that impedes the House in the performance of its functions, and what could be a more important function for this House than to be able to take the decisions in the next week or so in full knowledge of the impact of Brexit having seen the full legal advice on Brexit? That is why we are here today. That is why, Mr Speaker, I wrote to you on 28 November and subsequently signed the joint letter raising this issue of contempt.

The Government came forward with a reasoned position paper. The right hon. and learned Member for Beaconsfield (Mr Grieve) did a good job of explaining quite how complex and extensive the legal advice is that the Attorney General will have received, but that rather reinforces the point that the Attorney General’s producing a synopsis of said extensive legal advice spread over much correspondence runs the risk of presenting that synopsis in a way that is most advantageous to the Government. In relation to my intervention on the hon. Member for Mid Bedfordshire (Ms Dorries), who is no longer in her place, the only point that I was making again—I am very happy to get it on the record again—in relation to the advice about the Iraq war is that, clearly, that advice was cherry-picked, massaged and presented in a way that reinforced the Government’s case. That is the only comparison that I am making, with the possible risk of the Government, unintentionally perhaps, doing exactly the same thing in relation to the full legal advice that Ministers have seen—and indeed that Ministers have leaked. While a reference was made to that leaking, the Attorney General simply shrugged his shoulders as if the leaking of that advice selectively to the media by the Government is perfectly normal and acceptable in the daily course of Government business.

We know what happened in relation to that advice about the Iraq war, and, as for the Government’s amendment, we know clearly what the purpose of that is. Even with undue alacrity, the prospect of the Committee of Privileges addressing this before 11 December is precisely nil, so we will clearly not get that clarity, guidance and direction to the Government before 11 December. I must say that I suspect that that is what motivates the Government in pushing that amendment. This is, of course, a pattern of Government unwillingness to allow Members of Parliament access to the legal advice that we need in order to take the decisions that we need to take. The article 50 case is a very good example of that, as the Government have repeatedly refused to say whether article 50 is revocable, hiding behind the fact that they will not seek to revoke it, so Parliament does not need to know. I am very pleased that, today, the Advocate General has given a recommendation—it is only a recommendation, but one that is very likely to be adopted by the Court—that makes it very clear that article 50 is revocable. For Members of Parliament voting next week, it is critical to know whether, if a people’s vote is secured and if, at the end of that campaign, people vote to stay in the European Union, we have a means of revoking article 50 to bring that into effect.

[Geraint Davies (Swansea West) (Lab/Co-op)]

On that point, does the right hon. Gentleman believe that the Attorney General gave advice to the Government on the revocability of article 50 and has hidden that advice from this House, and that is why we have not had that disclosure?

[Tom Brake]

All we know for a fact is that a number of Members of Parliament, including, I suspect, the hon. Gentleman, have repeatedly asked the Government to confirm their position on that and they have not been willing to do so, which is why, on these Opposition Benches, we very much welcome the fact that the European Court will resolve this matter in the next couple of weeks.

Just on that issue of article 50, I wanted to thank the hon. and learned Member for Edinburgh South West (Joanna Cherry) for leading that charge, along with Members of the Scottish Parliament, and indeed also the hon. Member for Nottingham East (Mr Leslie), who is not in his place today but who has joined me in a supporting role to the hon. and learned Lady.

--- Later in debate ---

[Geraint Davies (Swansea West) (Lab/Co-op)]

The question before us is whether there is additional information that was in the legal advice that is relevant and pertinent to the crucial question that we must ask ourselves in voting on the withdrawal agreement. Against that, the Government have suggested that there are security and national interest matters to defend. The motion says that Ministers should provide

“the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework”.

That does not imply that every email and every jot and tittle is required. In terms of national security and the national interest, that means that there is not a great risk.

The question is whether there is a reason to believe that critical legal advice has been withheld. I suggest that there is such a reason. Yesterday, I put it to the Attorney General, following advice from counsel in two chambers, that the European Union (Withdrawal) Act 2018 gives the Prime Minister the right to submit article 50 based on an advisory referendum, but if that referendum has been found to be conducted illegally and subject to cheating and lying, then the advice is flawed and so the notice should be withdrawn—and we have heard from the advocate general that in all probability it can be withdrawn. Was this advice tendered to the Government or discussed with them by the Attorney General? He did not mention it at all, and yet it is advice that is available. That suggests to me that the advice that has been given to this House is incomplete for us to draw our conclusions.

I turn to the argument that the Government should now revoke article 50 on the basis that the advisory referendum was flawed. First, we already know that the leave campaign misled the country during the referendum, deliberately or not. Secondly, multiple investigations by the Electoral Commission have found that the leave campaign broke campaign finance law. Thirdly, had those offences committed by the leave campaign been committed in a general or a local election, the result would have been legally void. Fourthly, the Government have a legal duty to take all relevant considerations into account when making a decision. Therefore, the fact that in any other election the referendum result would have been void due to one side’s illegal conduct is a relevant consideration when deciding whether to give effect to the result—that is, in ratifying the withdrawal agreement that would give Brexit effect.

In essence, then, the advice on the withdrawal agreement that the Attorney General should have considered would be whether the Government were failing in their duty by promoting an agreement when the animating factor of the agreement—the referendum—was so fundamentally compromised. Therefore, the Government are acting illegally by moving forward with Brexit without giving proper consideration to these facts. This whole debate and discussion was not included. Whether or not one agrees with it, this discussion would presumably have occurred within the ambit of the Attorney General, but we do not know that. That is a key reason to believe that the advice being given has been doctored for party political reasons. We need the full and latest advice.

As we have heard, the advocate general is saying that article 50 may be revocable. What was the view of the Attorney General given in the legal advice to the Government? We have not been told. The Attorney General must be aware of these points of law but has not listed them, and so we must conclude that he is withholding from the House relevant issues not for the national and public interest but for party political reasons, and is therefore in contempt of this House.

[Antoinette Sandbach (Eddisbury) (Con)]

The hon. Gentleman has just made very serious allegations. Does he not recognise the importance of the legal professional privilege that attaches between a lawyer, as an adviser, and their client?

[Geraint Davies]

Of course I do. The whole point is that this House is entitled to the full legal advice. The Government are hiding behind this cloak of saying, “Oh, the national interest; oh, negotiations; oh, security.” That has nothing to do with it.

What I am illustrating with these legal arguments is that there are alternative views that need to be fully discussed so that we can take the right decision on the withdrawal agreement in full knowledge of the facts. We have had a doctored version that is politically spun in the interests of the Government getting their objectives through. They are protecting themselves by saying, “Oh, there might be issues of national security, MI5, the public interest, etc.” I have great support, I must say, for the Father of the House’s suggestion that if there were such problems with national security and so on, those parts could be redacted and we could see the full legal advice.

This motion focuses clearly on the legal advice provided by the Attorney General on the EU withdrawal agreement. Implicit in that, in my interpretation, is that we obviously do not need lots of details about MI5, national security, the negotiating position and so on. What we want to know is the legal position in respect of article 50 and of the illegalities during the advisory referendum that made it flawed, thereby undermining the power that the Prime Minister has under the EU (Withdrawal) Act based on the advisory referendum that we now find is flawed. None of this was brought before the House. Why? Either because the Attorney General and his colleagues are incompetent or because they are withholding that information.

[Hannah Bardell (Livingston) (SNP)]

As the hon. Gentleman says, the Government are hiding behind the national and public interest and claiming to be the final arbiter of public interest. Does he agree that they are not the final arbiter of public interest, despite what some on the Government Benches may think, and that it is not in the public interest for the UK Government to be governing in secret, with Members of this House not having all the information to make a proper, educated decision?

[Geraint Davies]

Yes, that is precisely right. What the House wants is the complete legal arguments on either side of the debate on the EU withdrawal agreement. These are difficult issues; we all accept that, and we are all grown up. They might say, “Well, there are all these things about national interest, negotiation and security,” but people are not interested in that. We want the full facts. I have made some simple legal points that show the full debate has not occurred.

[Dr Murrison]

Is the hon. Gentleman interested, like I am, in legal advice given to the European Commission and its negotiators by its lawyers, which presumably the European Commission would like to be privileged in the same way as advice to the Cabinet is? Has he interested himself at all in that side of this negotiating process?

[Geraint Davies]

Yes, I am sure we would all be interested in that if it were available, but the issue on the table is whether the Government are in contempt, and there is reason to believe they are in contempt, because a lot of the legal arguments are simply being taken out.

[Hilary Benn (Leeds Central) (Lab)]

My hon. Friend referred to the suggestion of the Father of the House. Does he recall that the last time a Humble Address was passed by the House, which instructed the Government to hand to the Select Committee on Exiting the European Union the exit analyses, I made it clear to the Government on behalf of the Committee that the Committee would take the decision about what was released? In the end, having read all the pages, we released 36 or 37 of them and held three back, because we accepted the argument made by the Government at the time, that those might not be in the national interest, given that negotiations were taking place. That is an example of the way in which a Committee of the House has been able to exercise that judgment on behalf of all Members.

[Geraint Davies]

That is a very helpful intervention, and it builds on the proposal of the Father of the House.

There is a time constraint here. Obviously, the idea behind the amendment is to kick this into the long grass so that we do not have full legal clarity to make an informed decision when we vote next Tuesday. It is critical that all the legal advice is available to Members before then. If there were a facility to enable the redaction of irrelevant and possibly dangerous facts, figures and information in relation to our national interest, national security, negotiating position and so on, obviously that would be much better. The main question is, are we going to have the full legal advice, or are we going to say, “What can you do? They’ve played the national interest card”? As my right hon. Friend the Member for Leeds Central (Hilary Benn) said, there should be—I hope there will be—a way through this maze, so that we have the full advice before the crucial vote.