Privilege (Withdrawal Agreement: Legal Advice)

Lady Hermon Excerpts

Tuesday 4th December 2018 Commons Chamber

[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.