EU Withdrawal Agreement: Legal Advice
Debate between Keir Starmer and Oliver Heald(6 years ago)
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Keir Starmer
I do agree, and I shall develop the point about why we are making an exceptional ask today. In relation to everybody throughout the United Kingdom—
Sir Oliver Heald (North East Hertfordshire) (Con)
Will the right hon. and learned Gentleman give way?
Keir Starmer
I am just answering the previous intervention.
In relation to everybody throughout the United Kingdom, but particularly those in Northern Ireland, this is an important measure, as it is to all those who represent people in Northern Ireland.
Sir Oliver Heald
I am very grateful to the shadow Secretary of State for giving way. Does he not accept that with a live negotiation continuing, the Attorney General is giving legal advice about the situation, probably with several options? That is the sort of advice that is never revealed. It is of course different if we get to the point at which a decision has been made and that decision is being presented to the House, which is when the Government would always justify their legal position, but to give away the Attorney General’s legal advice while the negotiations are still continuing would be completely unacceptable.
Keir Starmer
I understand the point made by the right hon. and learned Gentleman—I had the privilege of working with him when I was Director of Public Prosecutions—and I shall address that directly, because I do understand the distinction between legal advice that is being given in real time and legal advice that may come to be given when a backstop is agreed and presented. [Interruption.] I will address that directly to make it absolutely clear what we are asking for, but I recognise the distinction that is being made and shall address it in due course—
Keir Starmer
I will press on, because the first point that I need to make is that this is an exceptional case—in other words, there is a rule or a convention, and there is an exception to it. First, of course, there is the unique importance of the peace process in Northern Ireland, which plenty of Members have experienced at first hand. There are politicians throughout the House who played an important part in that process. I had the great privilege of working for the Northern Ireland Policing Board for five years in Northern Ireland, where I saw for myself the progress that had been made and the ramifications of the Good Friday agreement. That was of unique importance.
Allied to that is the central importance of the withdrawal agreement itself. That critical document will determine the future relationship between this country and the EU, and it will be legally binding not just in international law, but, it is proposed, in domestic law through the EU implementation Bill. Therefore, the withdrawal agreement will not just be discussed in this House but will become international law and part of our law—a hugely important, exceptional case.
There is, of course, the special procedure in the House, to which I have already alluded, now reflected in section 13 of the European Union (Withdrawal) Act 2018. It is very unusual for us to have that legislative process for a motion on the deal. As has been said, it is critical that Parliament is fully informed of the details and the Government’s thinking. I know that the Government recognise that. They know that all material and detail should be put before the House so that it can consider the withdrawal agreement and future relationship carefully. In the 2018 White Paper, “Legislating for the withdrawal agreement between the UK and EU”, the Government committed to providing “appropriate analysis” before the meaningful vote and went on to say that this information
“will ensure that Parliament can make an informed decision about the implications of our new relationship with the EU in all areas.”
I readily accept that that was in the context of requests for impact analyses, but the same point applies: if we are to make a decision of this importance, it must be an informed decision, and that means that the details in every respect must be put before the House.
There is, of course, precedent for the Government publishing legal advice—albeit, I accept, in different and limited forms. The first is the Iraq war. I remind the House that, prior to the invasion of Iraq in March 2003, the then Attorney General set out in a written question in the House of Lords his views of the legal basis for the use of force against Iraq. He did not publish the full advice before the Commons vote to approve military action, even though many individuals, including me, felt that he should have done so on an issue of that importance.
Importantly, though, in April 2005, the Government did publish the Attorney General’s final advice to the Cabinet on the legality of the war with Iraq. I think there is general agreement now—there is certainly a majority view—that the Attorney General should have provided in 2003 the full advice that he finally produced in 2005, because the decision was so important. Therefore, there are exceptions to the convention in exceptional circumstances.
There is further precedent of advice being made available in the case of other military conflicts. For example, in November 2015 the then Prime Minister set out his justification for military action, including the legal basis, before the House was asked to approve action in Syria. I accept that what he did not make available at that stage was the full advice, but it is a clear precedent for the publication of details before a vote. In other words, when the House is coming to an important moment and making a decision of this kind, the convention of non-disclosure is open to exceptions. This is clearly an exceptional case.
Secondly, the nature of this advice means that it is not the same as other advice that the Law Officers give. The advice here is about what the proposed provisions in a treaty mean, and that is different from the advice that the Law Officers often give. The right hon. and learned Member for North East Hertfordshire (Sir Oliver Heald) may recall that, when he was Solicitor General, he gave a lecture on this very topic and set out that the core function of the Law Officers in giving their usual advice was to ensure that the Government and the Ministers act lawfully. That advice is given, as I and many other people in this House know, on a regular basis, and there are reasons why confidentiality has to be attached to it. It is, by its nature, advice to the Government, or even to individuals, on whether they are acting lawfully. They may often be in a position where somebody wants to challenge them directly about the legality of what they are doing. In those circumstances, the rule of non-disclosure applies.
The advice that would be subject to this motion is a fundamentally different type of advice that the Cabinet is seeking, because it is about the general interpretation of an important provision in the treaty, I assume so that the Cabinet can be assured about how it would work. Equally, the House could be assured about how it would work.
Sir Oliver Heald
The point I am making to the right hon. and learned Gentleman is partly about the sequence of events. At the point where the Government have made an agreement and the matter is being put to the House, clearly the Government will need to be able to justify their legal position and what they believe the agreement means. But at this stage advice is being given, no doubt on a range of options, and often the question whether something is lawful is also a question of how arguable a particular position might be, what the various options are, and perhaps what the Solicitor General or Attorney General thinks is the best option legally. Those points should not be in the public domain. It is the final legal position that should be made clear.
Keir Starmer
I am grateful for that intervention, which builds on our previous exchange. I agree; this is in relation to the final advice about the interpretation of the proposed withdrawal agreement and in particular any backstop arrangement that may be put in place.