Privilege (Withdrawal Agreement: Legal Advice)

Debate between Lord Clarke of Nottingham and Justine Greening

Tuesday 4th December 2018 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I follow up entirely on what has just been said by the hon. Member for Swansea West (Geraint Davies). He and the right hon. Member for Leeds Central (Hilary Benn) obviously have some sympathy with what I said.

It seems to me that the House is facing an extremely difficult dilemma, which was exactly the one faced by the Attorney General yesterday. There are two very important constitutional principles involved here that are important to people on both sides of the House, and unfortunately the present situation puts them in direct conflict with each other. The first is the sovereignty of Parliament and its ability to instruct the Government to do things that the Government do not want to do.

I will not repeat what my hon. Friend the Member for North East Somerset (Mr Rees-Mogg) said, because I entirely agree with everything he said, but the Humble Address is an extremely important weapon of this House. It is the duty of Parliament sometimes to instruct the Government to do things. We know that whenever the Government lose a vote, they think Parliament is wrong—they disagree—but they should comply. Parliament in recent years has greatly weakened its powers vis-à-vis the Executive. We should all think ahead to future Parliaments and simply not weaken it any further.

The Government did not vote against the motion when it was before the House because they knew they were going to be defeated. We all know why they asked Conservative Members not to vote at all. I disapprove of that. A Humble Address is an instruction. I disapprove of refusing to vote on Opposition motions and other motions. It may well be that constitutionally they are not legally binding, but we have never previously had a Government that just said, “Well, the House of Commons can express opinions if it wants, but as they’re not legally binding, we won’t bother to attend, and not many of us will listen to it.” That is a very unpleasant step.

Ahead of us are votes, including the meaningful vote on the withdrawal agreement and votes on the Bill that is necessary to implement that. Particularly on the meaningful vote, I hope that the Government abandon the idea that the only vote of any legally binding significance is the one on the Government’s proposal—yes or no—and that if the House wants to pass amendments or motions or express a different opinion, that is very interesting and a matter of opinion, but the Government will ignore any amendments. That was virtually what was being urged on the Procedure Committee a few weeks ago.

I hope that when we get on to sorting out the procedure for next week’s vote on amendments and the motion and for the Bill that ultimately follows, we go back to the standard procedure, whereby amendments can be tabled to Government motions before the motion is put, and when amendments are carried, the only vote remaining of the House is whether it approves of the motion as amended. With great respect, I do not think we should take any notice of all this stuff about the Government’s duty being to listen to what the House says and then decide, in their opinion, whether the public interest justifies complying with it. I am entirely on the side of the critics.

On the other hand, as my hon. Friend the Member for North East Somerset said, the Conservative party will deeply regret when one day it is in opposition that it has challenged the authority of Parliament, and the Labour party might well come to regret when it gets into government its attempts to override the convention that Governments are entitled to confidentiality when they get legal advice from the Attorney General. It is quite ridiculous to throw out either of those principles, because there are occasions when they are both extremely important.

I am not a lawyer in the same rank as my right hon. and learned Friend the Attorney General, though I have practised for many years. I once declined an offer of an appointment as a Law Officer, because I preferred to stay in the departmental job I was then in. I am now totally out of date—I accept that—but I am very familiar with the circumstances when a lawyer gives advice to his clients and gives honest opinions of the legal advice. Of course a lawyer is talking about the circumstances of the case, but Law Officers’ advice in particular, which I have seen many times when I have been given it as a Minister, is all muddled up with questions of policy, the law, arguments about tactics and comments on what the other side might do. Advice is given to a client in a way that 100% should be an accurate expression of the lawyer’s opinion of the law, but it will be coupled with lots of other things, because the lawyer does not just sit there ignoring the merits or what the client wants to achieve.

[Justine Greening (Putney) (Con)]

My right hon. and learned Friend is making a powerful argument. He is saying that the House should not have to choose between those principles, and what we should have expected was more leadership from those on both Front Benches in order to reach a proper, thoughtful solution on how to strike the right balance—just as we have on security matters, for example. This is a unique position we find ourselves in, but it was not beyond the wit of the political leaders in our country to reach a solution and avoid this point.

[Mr Clarke]

My right hon. Friend summarises my argument in a very neat way. That is exactly the case. I will not do the Father of the House “What it used to be like” and all that sort of thing, but I would have expected—it would easily have happened in my time—the usual channels to sort this situation out.

European Union (Withdrawal) Bill

Debate between Lord Clarke of Nottingham and Justine Greening

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

[Justine Greening (Putney) (Con)]

My right hon. and learned Friend has made a very important point. I represent a very young constituency in London. The bottom line, looking ahead, is that, if Brexit does not work for young people in our country, in the end it will not be sustainable and when they take their place here, they will seek to improve or undo what we have done and make it work for them. So we absolutely have a duty in this House to look ahead and ensure that whatever we get is sustainable and works for them.

[Mr Clarke]

I entirely agree with my right hon. Friend on that. One extraordinary thing about the division of opinion is that I have never known it to be so much on generational lines. There are some zealot young leavers and there are one or two, like me, old fogey, very sound remainers, but otherwise the public have not usually been divided so fiercely on generational grounds. In my limited experience—I do spend a lot of time in London’s House of Commons—I would have thought places such as Richmond and Putney would underline that very heavily. My experience of young, ambitious, professional business and other people in London has been that for the first time in my life I have had complete strangers from that category walk up to me in the streets just to thank me for taking part in this campaign. [Interruption.] I see that other Members have exactly the same experience. I am sure the silent people who walk by deplore my views, but this just brings home to me how divided the nation is and, curiously, it is on generational grounds. Therefore, unless something happens, the pro-remain sentiment is likely to increase as a proportion of the country as we go on. But if we leave and are then forced by events to start going back again, I cannot think of a more chaotic situation. That is why we need the information to make a proper assessment when eventually the Government, as they will have to and are entitled to, come back to this House to present the proposed deal—not a deal they have already done and signed up to—for approval.

The Government have vast amounts of material on this subject and vast access to resources, and they have no reason for excluding the House of Commons totally. I am talking not about their negotiating position, because of course they will exclude us from that, but about the basis of the objective, independent advice they have received. That is why I thought it was wise for the House of Commons to pass the motion, which the Government allowed it to do, asking them to produce papers, after Ministers had rightly said that there were all these impact assessments and so on. I bow to the Select Committee, to which we rightly transferred responsibility for looking at that and considering the matter, but I agree with the intervention I took from the hon. Member for Glenrothes.

The Government escaped from that position by suddenly taking the most narrow interpretation of the words “impact assessment”. Apparently, civil servants, who are always capable of coming up with helpful advice, said, “Strictly speaking, Minister, in Whitehall, ‘impact assessment’ means this.” That is not quite how we set it out, so that was refused. Then this was all edited, probably with large parts of it rewritten. What we do not have is what we undoubtedly require: an impact assessment, by whatever description, using the advice that comes to the Government from the Treasury, the central Bank, the Office for Budget Responsibility and any consultants they have taken in, of the basis on which this deal is being proposed and what the best advice they can obtain about its impact is. I am astonished that we have got so far into the proceedings and the debate on our future relationships with Europe and we still do not seem to be any nearer to persuading the Government ever to divulge any of this. I do not think we should wait for the 20-year or 30-year rule before we are allowed to see on what basis the Government were proceeding. As I began by saying, I agree with new clause 17 that we should specify that proper, full information is shared by the Government with this House before they come for our approval.