EU Withdrawal Agreement: Legal Advice

Nick Thomas-Symonds Excerpts

Tuesday 13th November 2018 Commons Chamber

[Nick Thomas-Symonds (Torfaen) (Lab)]

Throughout this well informed debate, we have rightly heard a great deal about the important principle of the confidentiality of legal advice and lawyer-client privilege. However, it also needs to be said that the Government are no ordinary client and the position of the Attorney General, a political appointment, means he is no ordinary lawyer. Let us be clear about the Law Officers convention on not disclosing legal advice and what it actually consists of.

Reference has been made to the Cabinet Office ministerial code, which states:

“The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.”

The 24th edition of “Erskine May”, which has been cited by my right hon. Friend the Member for Leeds Central (Hilary Benn) and other Members, states:

“The purpose of this convention is to enable the government to obtain full and frank legal advice in confidence. Therefore, the opinions of the law officers of the crown, being confidential, are not usually laid before Parliament”.

Then, “Erskine May” specifically refers to the situation where

“a minister deems it expedient that such opinions should be made known for the information of the House”.

Put simply, we on this side of the House wholly respect the Law Officers convention, but it is not the case that the convention means the Government shall not disclose legal advice whatever the circumstances; the convention is not an absolute ban on releasing legal advice given. The Government should not hide behind the convention, because there is clear discretion for them to decide whether or not this is a situation when the advice should be laid before Parliament. It is for the Government to tell us why they want to keep MPs, including their own, in the dark about the full content of the legal advice on the withdrawal agreement and why this situation is not exceptional.

I listened carefully to the concessions made by the Minister for the Cabinet Office in his speech, but my hon. Friend the Member for Pontypridd (Owen Smith) is entirely right to say that they simply do not go far enough. First, we are told that a statement will be published. As many Government Members said, that statement is different from the legal advice. The safeguard that we have been offered—that the thrust of the two documents will be the same and that all nuances and all other things will be included—is, apparently, the resignation of the Attorney General in circumstances in which they were not the same. The Attorney General was not even present to give that assurance; the person who gave it was actually the right hon. and learned Member for Beaconsfield (Mr Grieve), in his thoughtful speech. That is the only safeguard on that that the House has been offered.

Secondly, we are told that the Attorney General will give an oral statement to the House and be questioned by Members, but that actually means that the Attorney General will have seen a document on which Members of Parliament are expected then to interrogate and forensically question him without seeing the same document themselves. That is exactly what the situation would be. The concessions do not go far enough.

There is no point in saying that the publication of the advice will somehow prejudice ongoing negotiations, because by the time it is published, in time for it to be considered before the House votes, the negotiations on the backstop will be completed—if, of course, the Prime Minister has reached a deal. As my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) made clear, we are asking not for a blow-by-blow account, every step of the way, but for a specific piece of legal advice on something of profound importance. That is what is crucial.

Our constituents’ jobs, businesses, livelihoods and living standards all depend on the outcome of the negotiations. The issue is one of fundamental importance for this House and its consideration of a matter that is so vital for the future of our country. As my hon. Friend the Member for Pontypridd put it, the whole constitutional integrity of the United Kingdom is at stake. It is difficult to think of a more compelling case for exceptionality and for the disclosure of legal advice. The idea that disclosing it in these most exceptional of circumstances would somehow damage the Law Officers convention has no credibility at all. Indeed, in these circumstances it is right that all right hon. and hon. Members can see the whole picture—that the Government provide the fullest possible transparency. It is an issue that goes across party lines and that is of great importance to this House and its ability to take decisions on the very best evidence available at the time.

The legal basis for the Northern Ireland backstop—if there is one to be agreed—what it means now, and the implications for what it could mean in future, are central to our considerations. It should be scrutinised and interrogated, and the Government have no good reason to prevent the legal advice from being made available to right hon. and hon. Members so that that can take place. Nor should this House ever be content with edited highlights. We need to see the full consideration of the different arguments provided by the Attorney General. The House should be able to consider every sentence and every nuance.

If a deal is reached, the House deserves to see a properly detailed political declaration, to see a full economic impact assessment that applies both nationally and regionally and covers all parts of the United Kingdom, and to have full time to debate. The legal advice is crucial in informing that debate. This debate has wide implications for our politics and affects the lives of all our constituents. It is about accountability and the Government’s willingness to subject themselves to scrutiny on the most vital of issues. I urge the Government to listen, to respect transparency and openness, and to respect Parliament on an issue of such magnitude. The Government have promised the House a meaningful vote. Such a vote requires Members of Parliament to analyse forensically any deal so that they can fully understand the implications of the Government’s position. The Opposition say publish the full advice, so that Parliament can make an informed decision for the future of this country, to secure our economy, our jobs and our future.