Privilege (Withdrawal Agreement: Legal Advice)

Kevin Foster Excerpts

Tuesday 4th December 2018 Commons Chamber

[Robert Courts (Witney) (Con)]

It is an honour to speak in this important debate and to follow my hon. Friend the Member for South West Wiltshire (Dr Murrison), who made some excellent points, all of which I agree with.

It is worth restating the fundamental issue that we are dealing with, which is the clash between Parliament, as a sovereign institution and the highest court in the land, and the right of the Government—any Government—to have access to independent, unvarnished, honest legal advice. I suggest that this is a moment when all Members, on both sides of the House, ought to engage in a period of cool, calm reflection. I would further suggest that the Government’s amendment is the correct way to do that.

[Kevin Foster (Torbay) (Con)]

Does my hon. Friend agree that traditionally the Law Officers’ advice can only be released with their consent? The information has now been revealed via a statement—that is self-evident—but there is that convention to bear in mind.

[Robert Courts]

I am grateful to my hon. Friend, who, as always, makes an excellent contribution. It is normally the case that the client has the ability to waive legal advice if they wish, but, in the case of Government Law Officers, there clearly is another layer to that, and their position is of enormous importance.

The Government’s amendment is the correct, cool, calm way to look at this matter. We are in uncharted territory. The very fact that we are all discussing constitutional and historical precedents today means that we all ought to avail ourselves of more time in which to study those in detail so that the Privileges Committee can consider the real constitutional and historical ramifications of any decision we take.

To be honest, there are a number of questions to which I do not know the answer. Does a Humble Address trump privilege? It would be helpful if somebody were to look into that and consider it. I do not think there is a straightforward answer because I do not think it has ever been tested—I may be wrong. My point is that a period of cool, calm reflection on such points would be of benefit to everybody in the House. Further, where does the line fall in terms of disclosure? Is there a question of redacting elements of advice? If so, where does the line fall?

Many Members will be clear that the line falls when we are talking about national security—that is relatively straightforward perhaps—but what about the national interest? It is not so easy to define, but it is something that we ought to consider carefully before rushing into what are extremely serious matters, not just of party politics—although of course there is a big element of that in this—but of constitutional and legal theory and practice that could have profound consequences for any Government. The Opposition ought to be aware that at some stage—I hope not for a long time—they might be sitting on these Government Benches and should consider the position they would wish to take.

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[Kevin Foster (Torbay) (Con)]

It is pleasure to be called in this debate, following so many learned, right hon. and hon. Members. I enjoyed some of the contributions from the Scottish National party Members on the idea of Parliament being supreme, given that they will remember the famous case of MacCormick v. Lord Advocate, where it was said that complete parliamentary supremacy is an English concept and not necessarily one of Scots law. So it is great to see their conversion now that they have come here.

I shall turn now to the matter of substance. I sat through a lot of that debate on 13 November and I noted the numerous points that were picked up about how the motion passed then had various queries raised about it.

[Ian Blackford (Ross, Skye and Lochaber) (SNP)]

rose—

[Kevin Foster]

I am always happy to give way to the leader of the SNP here.

[Ian Blackford]

I wish to assist the hon. Gentleman by giving him the exact quote, which is that parliamentary sovereignty is a purely English concept that

“has no counterpart in Scottish constitutional”

history. Of course this House endorsed a motion, pushed by the SNP some months ago, that sovereignty does rest with the people of Scotland, through the Claim of Right. I trust that if this Government seek to try to take us out of the European Union and the only way we can protect our interest is by becoming an independent nation, they will endorse our right to call a referendum.

[Kevin Foster]

I very much thank the right hon. Gentleman for that intervention and for, yet again, reminding people in Scotland that the SNP’s focus is indyref2 and separation of this Union. It is always ironic to hear SNP Members calling for an end to borders in Europe, given that they want borders on this island. I am genuinely grateful for that intervention and I know that my Scottish colleagues will be even more grateful for it, as they will be able to put it in their next leaflet.

I turn back to what we are discussing today, which is the motion on contempt. Like previous speakers, I find it interesting that, even before the Attorney General had managed to sit down, some people had concluded that he was already in contempt. The Opposition do not strike me as short of the ability to find senior and experienced lawyers to analyse the withdrawal agreement, its implications and what it might mean for the future. To see that, we have only to look at their Front Bench, where we see a very eminent Queen’s counsel. So it is bizarre that they are, in effect, arguing that they are not able to make a reasoned judgment on this without the legal advice. We are not talking about the legal position of the Government, as it is right that this House should always be able to demand that the Government set out the legal basis of their actions in this Parliament. We are a country defined by the rule of law, which is why it is right that legal positions can be requested and demanded. The Opposition, however, are saying that we need the Government’s lawyer to tell us what the legal implications are and what the legal advice is on this area. For me, this is not an area in which they are going to be short.

My hon. Friends the Members for Cheltenham (Alex Chalk) and for Mid Dorset and North Poole (Michael Tomlinson) made excellent speeches and made clear the key points on what the motion is about. I particularly enjoyed the speech from my hon. Friend the Member for Witney (Robert Courts), who made the distinction between disclosure, which is a strong point of criminal law—indeed, it is important in civil cases, too, to make sure that evidence is not concealed—and privilege around legal advice.

When I used to give legal advice in the run-up to cases in places such as Solihull magistrates court, there was no forum in which to ask what my advice was. Clearly, I could not conceal evidence, and I could not run a line of argument in court that I knew to be untrue. Many Members, including the Attorney General, will have heard the adage about what happens if a client tells a lawyer they are guilty. That means that the lawyer cannot run a defence. They can test the prosecution’s case, but they cannot run a defence in court or mislead the court. A lawyer cannot be required, though, to overturn their legal privilege and put their legal advice out there. To be blunt, it is quite a worrying trend that Government Members want to attack the right to legal privilege.

[Lady Hermon (North Down) (Ind)]

Will the hon. Gentleman deal with the assertion, accusation, suggestion or allegation made by the Democratic Unionist party that if the Government are not prepared to publish the full legal advice given by the Attorney General, that means that somehow they have something to hide? That has to be addressed before we vote.

[Kevin Foster]

To be blunt, anyone who listened to the Attorney General’s statement yesterday would have been hard pressed to think that he had something to hide. He was very open about some of the challenges with the withdrawal agreement, particularly in respect of issues related to the Northern Ireland backstop and what it means, which will be of immense concern to the hon. Lady. There was not one word on which he was holding back on what he thought about the legal position on the backstop. I do not believe for one minute that he, as a very senior barrister, would have come to the Chamber and given a legal position that in any way conflicted with the legal advice that he had given to the Cabinet and the Government. We need to be very clear about that, because I do not believe there is anything to hide. The statement was not on why legally it might be a good idea to sign this treaty; it was on the legal position.

No one in the House is arguing that Parliament does not have the legal power to sign and ratify the treaty that the Government have negotiated, if it wishes to do so. The debate is fundamentally about whether or not we think it is a good idea to do so. There are obviously sharply differing views about whether it is a good idea, not only on either side of the Chamber but, to be blunt, among Members on the Government Benches, but nobody is arguing that there is not the legal power to do that, based on our constitution.

To turn to the intervention from the hon. Member for North Down (Lady Hermon). I do not think that anything was hidden. The Attorney General was clear about the legal position and the backstop and he was clear in response to colleagues’ queries. I do not believe for one minute that any word of what he said would have conflicted with the legal advice that he had given privately. That is the difference: position is different from advice. Evidence is different from a lawyer commenting on the evidence to their client and giving them advice about what it might mean. If we reach the point at which we accept the idea that the Attorney’s advice will end up out in public, we will see a trend towards things not being written down but expressed verbally instead, and of there not being proper records that can be accessed at a later date when the advice might become relevant. We would be moving away from the idea that some of the key principles of law, including legal privilege, operate in the same way in Government as they operate outside.

Let me turn to the motion. I find it interesting that there has been a push to debate this today. I accept that—it is all part of the procedures of the House, all perfectly properly followed—but it would make much more sense for the Privileges Committee to carry out a proper investigation, rather than the House deciding whether someone is guilty of contempt in effect via a jury made up of their political opponents, and following a party political knockabout in the Chamber.

That is why, for me, the amendment has strength. This is not about saying, “Let us vote no, and forget about it”. This is about asking for the proper process of the House to be gone through. For those following our proceedings, the Privileges Committee is chaired by an Opposition Member. It is not a Committee that will purely follow the will of the Government, and that, for me, is where the strength of the amendment lies. This is about having a proper debate about this clash of principles, this clash of legal privilege, the position of the law officers and the position of this House to pass returns and to make a request for documents through the means of a Humble Address. I accept that nobody in this House would think that it was a sensible idea to have a Humble Address for MI5 documentation or for sensitive diplomatic papers, and I would not seek to advance that. However, in this instance, those things are coming together at a time when, actually, if anyone wants a legal opinion on the withdrawal agreement, they will not be short of suggestions coming into their email inbox from various eminent lawyers across the country.

[Nigel Huddleston (Mid Worcestershire) (Con)]

Will my hon. Friend give way?

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[Kevin Foster]

I am about to conclude because I am conscious that there are one or two others who are waiting to speak. [Interruption.] I hear a request for more from SNP Members, but sadly, I will have to disappoint them.

For me, the amendment is the right path to go down as it allows proper consideration by a Committee and a decision on whether the matter has been properly and fully dealt with, not a short-term debate 24 hours after a statement on the Floor of the House. It was particularly interesting to hear the Father of the House, my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), giving us some ideas about how matters such as this could be handled in future. With that, I will conclude my remarks, and say that the amendment is the right way to go. There have been some quite interesting arguments this afternoon, but I hope that Members will reflect on what precedent they might set for a future Government of their own colour.