Brexit: Legal Position of Withdrawal Agreement

Lord Mackay of Clashfern Excerpts

Monday 3rd December 2018 Lords Chamber

[Lord Keen of Elie]

With respect to the noble Baroness, the then First Minister’s record on when he did and when he did not receive legal advice from the law officers was somewhat uncertain, if I can put it in those terms. I therefore do not believe that any of that sets a precedent for the present situation.

[Lord Mackay of Clashfern (Con)]

My Lords, it has been the legal position for many years that when a legal adviser advises a client, that advice is confidential. It is not for me to criticise what went on earlier in the other place, but it seems to me that it had forgotten that the Attorney-General has an absolute duty to advise the House of Commons. It could have asked him to do so and answer any questions of law that it could think of putting to him. That is the correct way to deal with such a matter. Reference has been made to what happened in the past, which I believe was very much in accordance with that.

In my view, it is impossible as a matter of law for the legal adviser to say that he will publish legal advice which has been given to someone else in accordance with an obligation of confidentiality. So far as the Government and Parliament are concerned, that is no disadvantage, because they have the advantage that the Attorney-General is the adviser of the House of Commons—as he is the adviser of this House also. He is bound, in connection with that advice, to answer any questions that may be put to him on the relevant law. I cannot see any better system than that for reconciling the two fundamental problems about the position of a legal adviser.

The Attorney-General is responsible for keeping that confidentiality unless the client thinks the advice can be disclosed without any problem, but that depends on the nature of the arrangement. So far as I am concerned, by far the best arrangement is that the Attorney-General personally comes to the House of Commons and gives his advice, answering any questions that are required. That is what happened, as far as I understand it, today. There are enough problems with this Brexit business, which we are going to discuss over three short days in due course, without trying to complicate them with material about the conventions of the UK that, as far as I know, have lasted a long time and been extremely satisfactory.

[Noble Lords]

Question!

[Lord Mackay of Clashfern]

In my view, the fact that the House of Commons is entitled to get any advice from the Attorney-General that it wishes is the answer to this question.