EU Withdrawal Agreement: Legal Advice

Joanna Cherry Excerpts

Tuesday 13th November 2018 Commons Chamber

[Mr Lidington]

My right hon. and learned Friend is spot on. The Law Officers’ advice goes beyond other forms of legal advice in its particular complexity, sensitivity and constitutional importance. For that reason, there is a high premium—higher even than that in respect of other forms of legal advice—on protecting that advice.

The Law Officers convention is also a facet of the important constitutional convention of collective Cabinet responsibility. Again, the ministerial code is clear on this. It says that all members of the Cabinet must publicly support collective decisions, but are able within Cabinet to debate and raise concerns privately, and the Law Officers’ contributions to those Cabinet discussions and decisions should similarly be protected, just as the contributions of other Cabinet Ministers or the minutes of Cabinet meetings themselves are protected. That ensures that the public debate is about the Government’s collective decision and the Government’s accountability to this House, rather than about internal processes.

Where the right hon. and learned Member for Holborn and St Pancras was correct was to say that, in the case of the Iraq war and Lord Goldsmith’s advice, an exception was made to this general rule. It is certainly the only one of that nature in modern times that I have been able to find so far. However, it was done some years—two years—after the event, following the appearance in the media of selected verbatim extracts from the advice. However, the key difference between that case and what we are debating this afternoon is that, in the Iraq case, the point at issue was not the legal implications of particular policy options, but whether the Government’s entire action in Iraq was or was not lawful. That was the point at issue then, which is why the then Government decided that it was right for them to make an exception to what is normally a very firm convention.

I believe that, if this convention were to be set aside, there would be an adverse impact on the quality of discussions within Government and of the Government’s collective decision making, which would not be in the interests of any Government of any political party. Whether by means of resolutions of the House or otherwise, if Law Officer advice is made public, future advice is likely to be less frank and candid than at present and less likely to be written down. That is not going to make for good government.

[Joanna Cherry (Edinburgh South West) (SNP)]

Is there not another aspect to this? A number of the Minister’s Cabinet colleagues have said that they did not properly understand the legal implications of what was agreed to last December. That is of course what has led to the dilemma in which the Government now find themselves about the backstop. If the Cabinet were not able to understand the legal advice last December, surely that means they will not understand it this time round and it is important that this House, which will take the ultimate decision, fully understands the legal implications of what is about to be agreed to, if indeed there is going to be an agreement.

[Mr Lidington]

I go along with the hon. and learned Lady this far: I have set out how the Government intend to discharge the commitment that we have given to making sure that Members in all parts of the House are fully informed and do understand the nature of the legal, as well as the economic and political, implications of the decision that we are facing. However, at no time in our Parliament’s history has any Government operated in an environment where legal advice is prepared for Ministers one week and then made public the next.

I have to be clear that this motion does go against the Law Officers convention, which Governments of all colours have defended. I hope, therefore, that, during this debate, the right hon. and learned Member for Holborn and St Pancras and his colleagues will reflect on the assurances I have sought to give to the House this afternoon; will take them in the spirit in which I, on behalf of the Government, certainly intend them; and will, having reflected on these matters, decide not to press their motion to a Division, but to go forward in a spirit of cross-party consensus, so that we can work out together how to present to the entire House the information and analysis that Members on all sides rightly expect to have available in order to make an informed decision on a political issue of this historic importance.

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[Vicky Ford (Chelmsford) (Con)]

It is an honour to speak in this debate. It is also quite challenging, because we have heard from a number of people with deep legal experience, many of whom are hon. and learned Friends, and I am not a lawyer. However, I speak as someone who has a vast amount of negotiating experience. I spent eight years in the European Parliament leading international negotiations—in fact, I participated in more European negotiations than any other Member of that Parliament at that time—on top of 15 years of commercial negotiations, many of which were also international.

As a negotiator, I know how important it is to be able to seek legal advice as one goes along, not just on the final deal but on the deal as it develops. Because of that legal advice, we sometimes change our strategy, and the nuances can have an impact on the final deal. As a negotiator, I know it is important to be able to play our cards close to our chest. Sometimes, if we are forced to disclose our position too early, it can tie us down and remove negotiating options.

It is therefore extremely important that we do not force those on our side of the negotiating table to disclose issues that those on the other side are not having to disclose. These are the most complex negotiations for a generation, and I personally think it is deeply impressive that all parties are still talking to one another, given how complicated the negotiations are. We should not force one side to disclose what the other side does not have to disclose.

The second reason that I am concerned about the motion is that I have spoken to lawyers about the precedent that this could set in other situations. Many Members of Parliament are lawyers, and we know that people go to lawyers for advice on all sorts of things—family law, property law—and that they do that in confidence. It is really important that that confidence should not be broken. We should not force a lawyer to breach that confidence, because that would set an incredibly difficult precedent for other areas.

[Joanna Cherry]

Is the hon. Lady aware that the privilege attaches to the client and not to the lawyer? It is for the client to decide whether to waive the privilege. We are not asking the lawyer to waive the privilege; we are asking the Government—the client—to do so. That is a crucial distinction.

[Vicky Ford]

Let me take this further, and move on to the issue of transparency. I believe that transparency is enormously important, and it is important that all Members should understand the full legal ramifications of the deal that is negotiated before we hold our vote. After all, the relationship between the EU and the UK is vital to all of us, and there are highly sensitive areas involved, especially for Northern Ireland, a place that is dear to my heart. That is why it has been extremely helpful that the Government have today clarified that, before we vote, there will be a full and reasoned position on the legal situation and especially on the impact for the Good Friday agreement and the commitments to Northern Ireland. That is absolutely right. Furthermore, I am pretty convinced that before we get a vote, every other QC in the country will have emailed each of our inboxes, and that the noble Law Lords down in the other place will have given their most eminent thoughts throughout the night, which we will be able to read in Hansard. I have no doubt that we will have a vast amount of legal opinion at our fingertips.

Although I support the call for transparency, the final reason that I will not vote for the motion today is that it is incredibly uncertain and unclear. In my experience of international negotiations, and indeed all negotiations, the devil is in the detail. British negotiators have a strong reputation for getting the detail right. I thank the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) for clarifying some of the issues in the motion during his speech, but there are at least four uncertain areas in it. First, is the motion calling only for the final legal advice, or for “any legal advice”, as it states? Secondly, is it calling for the advice on the final withdrawal agreement, as some people have suggested, or for the advice on the “proposed withdrawal agreement”, which is what it says in the motion? If it is the latter, that would include all the advice given during the negotiations. That is what the motion is asking for, and it is important that we should keep our reputation for detail strong.

The third failure in the motion is that it is unclear whether it is calling for all the papers to be “laid before Parliament”, which is what it says, or for them to be made available to MPs, which is what I have heard the Opposition say they would now accept. That would be similar to the process by which we were able to access the impact assessments.

The fourth problem I have with the motion is that it is not clear when the advice would need to be made public. Would it be during the negotiations, or now, or after the negotiations have been finalised? I believe that the Opposition spokesman tried to clarify those points from the Dispatch Box, but that is not good enough. This is a serious vote on a serious issue relating to the most crucial negotiations of our lifetime, and this type of motion is simply not good enough.

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[Joanna Cherry (Edinburgh South West) (SNP)]

It is always a pleasure to follow the hon. Member for Witney (Robert Courts), who speaks eloquently and courteously, as always, although I disagree with him on this occasion. I rise to support the Labour party’s motion. In doing so, I declare an interest. Like many who have spoken in this debate, I have previously acted as a Government lawyer. I was a standing junior counsel to the Scottish Executive—as they used to be known before my colleagues came to power and changed the name to the Scottish Government, and quite right, too—and have acted as Crown counsel and one of the Lord Advocate’s deputies.

I understand the particular concern that Government lawyers have, but I have also acted for members of the public. I know there is a balance to be struck and that the interests of the Government are not always synonymous with the public interest. In this particular case, I do not think the interests of the Government are synonymous with the public interest.

My hon. Friend the Member for Glenrothes (Peter Grant) has already referred to the difference between the ministerial code in the United Kingdom and the ministerial code in Scotland on the disclosure of legal advice. The UK Cabinet Office ministerial code says:

“The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.”

That is an important qualification, and I will come back to what “Erskine May” says in a second.

By contrast, the ministerial code in Scotland has a section about exceptions to the convention of not disclosing legal advice:

“If, in exceptional circumstances, Ministers feel that the balance of public interest lies in disclosing either the source or the contents of legal advice on a particular matter, the Law Officers must be consulted and their prior consent obtained. Such consent will only be granted where there are compelling reasons for disclosure in the particular circumstances.”

The ministerial code in Scotland envisages that there can be disclosure in exceptional circumstances. Having regard to what “Erskine May” says, and having regard to some of the precedents we have discussed today, I would suggest that that, in effect, is what is recognised by this House. “Erskine May” says that

“the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence…and their production has frequently been refused; but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the orders of the House are in no way involved in the proceeding.”

“Erskine May” recognises that the UK Government can make the sort of exception that the Scottish Government are entitled to make in exceptional circumstances, and some historical precedents have already been mentioned today.

What I am saying is that these are exceptional circumstances. Again, as my hon. Friend the Member for Glenrothes said, another parliamentary convention has already been ridden over roughshod in relation to Brexit. The Sewel convention states that normally the Scottish Government should be consulted. The Government have said this is not a normal situation, and they may well be right. Of course, there is great legal debate about what “normally” means in the Sewel convention but, by the Government’s position, we are not in normal times. No, we are in exceptional times. Even if there were no precedent—and there are precedents—it would be appropriate for the Government to publish their legal advice on the finalised deal, if there is one, in full.

In this event, very unusually, I find myself in agreement with DUP Members. The people of Northern Ireland have a right to know this advice in full, as do the people of Scotland, England and Wales. It is this House that will make the decision on whether or not to accept that final agreement, not the Government. They are in danger of mixing up the functions of the Executive and the legislature in relation to Brexit.

Reference has been made to the case in which I am a petitioner, and which is going to the European Court of Justice, on the question of the unilateral revocability of article 50. The Government have fought that case tooth and nail, because they say it is up to them whether or not to revoke article 50, but the highest court, Scotland’s supreme court, has said, “No, it is up to this Parliament.” Just as it will be up to this Parliament whether to revoke article 50, it is up to this Parliament whether or not to accept the deal, so this Parliament should be given the advice that the Cabinet has been given. That is why I cannot agree to the compromise put forward by the Government Front Bencher, because it is a matter of trust now. As has been said by the hon. Member for Pontypridd (Owen Smith), the referendum in 2016 was won on the back of what we now know to have been some lies, some misinformation and, in some cases, breaches of electoral law. Unlike in the Scottish independence referendum, there was no prospectus as to what Brexit would look like. People have lost trust in the process. If trust is to be won back, this Parliament and indeed the people must be fully informed about the deal that is reached before the final decision is made to endorse the deal.

Legal privilege can be waived by the client, and that is what we are asking the Government to do. In the public interest, in these exceptional circumstances, we are asking them to waive that privilege. I am conscious that I have less than a minute left, but on the compromise offered from the Government Front Bench, I have three specific questions I would like the Solicitor General to answer. First, will what the Government are offering be made available to the devolved Governments? Secondly, how much detail will be in the legal advice that they are going to put forward—will it be sufficient for those of us who are going to be looking at it carefully to take an alternative opinion on it? Thirdly, if the Attorney General is going to come to this House to answer questions on it, will he give answers that are meaningful? Ministers so often do not give us a meaningful answer. In addition, will the Government allow a reasonable amount of time to elapse between the provision of their written document and the oral statement, so that the written document can be studied in order that properly informed questions may be asked?