EU Withdrawal Agreement: Legal Advice

Kevin Hollinrake Excerpts

Tuesday 13th November 2018 Commons Chamber

[Keir Starmer]

Perhaps it is better if I actually get to the distinction between real-life legal advice given in real time and the sort of advice that may be presented when the deal is being put to Parliament. I will deal with it, I am well aware of it and I know the distinction between the two. If I duck it, I am sure to be challenged later. Let me make some progress.

The chronology is this: as I said, on 17 October the Attorney General was asked by the Cabinet to provide a full assessment of the legal ramifications of the backstop. A few weeks later, on 6 November, it was reported that the Cabinet had been provided with a summary of the Attorney General’s advice on the options for the backstop. It was also reported that the Secretary of State for Environment, Food and Rural Affairs wanted to see the advice in full. There is no doubt that there will be final legal advice if the Government are able to reach an agreement with the EU. It is that final advice that we want to see, and I shall develop precisely what I mean by that in just a moment.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

rose—

[Keir Starmer]

Just like the Environment Secretary, we want to see it in full. Let me make it clear: we do recognise and understand the convention that Government legal advice should normally remain confidential, and that in ordinary circumstances it would not be appropriate to publish full advice, for good reason. But today I wish to make four points as to why in this case that convention should not apply. I shall summarise them and then develop them. The first is the unprecedented nature of the Brexit decision. It is both legally and technically complex and it is of huge importance across the United Kingdom. This is not just another vote.

[Kevin Hollinrake]

rose—

[Keir Starmer]

As I will set out, successive Governments have waived the convention against non-disclosure in exceptional circumstances, and these are clearly exceptional circumstances. That is the first reason.

Secondly, the nature of the advice we are asking to see is general and different from other advice that the Law Officers give. That is important when we consider the convention on confidentiality and legal professional privilege.

Thirdly, although legal professional privilege can attach to legal advice given by the Law Officers, it operates differently in relation to their advice from how it operates in relation to the advice of other lawyers. I shall develop that point.

Fourthly, what cannot be allowed to happen is that the advice, or bits of it, are shown to some Members of Parliament outside Government and not others, in order to persuade them about the deal or the backstop. In other words, once the disclosure goes beyond the Government, or in this case the Cabinet—if it does; I am not suggesting that it has at this stage—it must then be made available to everybody.

--- Later in debate ---

[Keir Starmer]

I shall give way in just one minute. We are not calling for legal advice to be published in its draft form, or as it is given between now and then, or on a rolling basis.

[Kevin Hollinrake]

On a point of order, Mr Speaker. I seek clarification, because presumably we are going to be asked to vote on the motion on the Humble Address, which clearly says,

“that the following papers be laid before Parliament: any legal advice in full”.

It says “any legal advice”, yet the shadow Secretary of State is now defining the legal advice that he wants to present. What are we to vote on, Mr Speaker?

[Mr Speaker]

How the Government respond to a motion, if it is passed by the House, is a matter for the Government. I do not think we need to invest this with greater complexity than is warranted. The motion is clear and people can make their assessment of it. The shadow Secretary of State has made it clear that it is the final advice that he is seeking. It is perfectly possible for a Member, in the course of a speech, to develop an argument. By definition, that speech and the development of that argument will involve the use of a greater number of words than are contained in a simple motion. How the Government respond to the motion, if it is passed, is then in the first instance a matter for the Government. It is probably best if we now proceed with the debate—

--- Later in debate ---

[Mr Lidington]

I have been here long enough to know that one should accept rulings from the Chair, but I can say to my hon. Friend that our intention in Government is to provide the kind of analysis that I believe he has been seeking, but which also meets the requests and calls of Members of all shades of opinion on the European issue, not just in my party but in all parts of the House.

I want to put on the record that there have already been discussions through the usual channels on a cross-party basis about how the Government can facilitate the briefing of Members in every party represented in this House. I can give the House a further commitment that those contacts and conversations will continue.

[Kevin Hollinrake]

What my right hon. Friend is setting out seems to be more or less what the shadow Secretary of State was asking for. Can he confirm that, if we were called to vote on this motion, we would be voting on something entirely different, which would be to produce all legal advice in connection with this matter?

[Mr Lidington]

I always try to build bridges. I hope that what I have said is of some assurance to colleagues in all parts of the House. As I said earlier, I think that the motion as worded goes wider than what the right hon. and learned Member for Holborn and St Pancras, in all fairness to him, was clear about in his introductory speech.