EU Withdrawal Agreement: Legal Advice

Owen Smith Excerpts

Tuesday 13th November 2018 Commons Chamber

[Mr Lidington]

In the case of the United Kingdom, we have some sanctions, while members of the European Union, that are applied by virtue of European Union instruments, and there are others additional to those that we have had the freedom to apply on our own. It would probably be unwise of me to try to supplant Ministers in the Department for International Trade and get into the detail about this, but I am sure that the Secretary of State will be only too delighted to listen in detail to the hon. Gentleman’s concerns.

I want to return to the main point that the shadow Secretary of State put to me.

[Owen Smith (Pontypridd) (Lab)]

Will the Minister give way?

[Mr Lidington]

All right. Then, if the House will forgive me, I will try to make some progress, because there are some really important points that I want to respond to.

[Owen Smith]

In the light of the Minister’s very welcome admission that the Government are to publish economic analysis on the withdrawal agreement, and in the light of his failure to deny on Radio 4 this morning that Britain may well be worse off as a result of leaving the European Union, could he confirm that that analysis will measure whether we will be worse off leaving versus remaining in the European Union?

[Mr Lidington]

There will be considerable economic analysis. I do not know quite how great the hon. Gentleman’s appetite for the detail will be, but I am sure that in addition to what is provided by the Government, there will be multifarious pieces of advice and analysis from outside organisations.

I want to make it clear that the Government fully understand the historic nature of the decision that Parliament will be asked to take. Frankly, as someone who feels sometimes as if I have been living through these issues for a considerable number of years, I think that nothing would be served by coming out of the debates that we will have on the meaningful vote and then, if approved, the implementation Bill with people feeling that they were not in full possession of the arguments and the evidence in order to take a decision. When we come through this particular period in our history, we have—all of us, from our different political perspectives—to find a way of moving on, to establish this country’s new relationship with our neighbours, friends and allies in the EU27 and to get on with the debates and the work on domestic policy issues, which I certainly find are what people raise first on the doorstep, rather than the detail of article 50 procedures.

I want to give a commitment to the Opposition and the House. We will make available to all Members of the House, following the conclusion of negotiations and ahead of the meaningful vote, a full reasoned position statement laying out the Government’s political and legal position on the proposed withdrawal agreement, including any protocols that might be attached to it.

In addition, my right hon. and learned Friend the Attorney General has authorised me to confirm to the House this afternoon that he is ready to assist further by making an oral statement to the House and to take questions from Members in the normal way. I think that that would go a lot further than the Libya precedent cited by the right hon. and learned Member for Holborn and St Pancras.

Ministers are also very willing to engage in further discussions with colleagues of all political parties, including the Opposition spokesmen, about how best, in terms of both substance and timing, we can provide analysis in the form that Members will want and need in order to make an informed decision when that is presented to them.

--- Later in debate ---

[Owen Smith (Pontypridd) (Lab)]

Many Members contributing to the debate today have commented on its comradely and constructive tone, and I do likewise. In opening the debate, the Minister made his usual elegant and courteous attempts to assuage fears and reassure the House about the Government’s intention to be clear about the legal and political basis on which we will proceed towards the Brexit decision in this place. To some extent, however, the tone of the debate has belied the gravity of the issues that we are debating. In my view, he did not do enough to assuage the concern that the Labour Front-Bench team and Labour Members rightly have. I therefore hope that our Front Benchers will push the motion to a vote. I believe that it would be a cowardly act by the Government if they were to sit on their hands and abstain. That would be an abdication of their responsibility to stand by what they have said in this debate about the sanctity of the principle of impartial, confidentially provided legal advice. I think it would be hard for them to reconcile that with abstaining.

There is a big difference between the Minister’s promise to offer the Government’s full legal and political position on their view of the deal and the provision that my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) has asked for, which is the full and final legal advice given to the Government prior to making that determination on the deal. The gap between those two things is so significant that a skilful rider such as the Solicitor General could ride a coach and horses through it. We have all seen legal advice that has been redacted, provided with omissions, or subject to the Government’s blue pencil, and that is what I fear we will see this time around. This is about a hugely important political decision that the Government are trying to sell to both sides of the House and to the country, so the Government will therefore seek to put the best possible gloss and light on what comes back from the negotiations in Brussels. However, if the decision is to be in keeping with what many people feel that Brexit was about—taking back control for this country and strengthening the sovereignty of this place—it would be inexplicable to many that parliamentarians are not being provided with the full, unredacted, unexpurgated legal basis on which the decisions are being taken.

I do not want to repeat all the points that my right hon. and learned Friend the Member for Holborn and St Pancras made from the Front Bench, but I will row in behind him in saying that the fundamental argument for publication is based on accepting that legal advice is ordinarily and conventionally provided to the Government in confidence. Indeed, I accepted that when I was an adviser to the last Labour Government, working alongside the right hon. Member for Aylesbury (Mr Lidington) on the peace process in Northern Ireland. However, we are not living through a normal set of circumstances. This is a set of circumstances in which the right hon. Gentleman, the Deputy Prime Minister, could appear on the “Today” programme this morning and refuse to refute the charge that the decision that he and other Ministers are taking will make our country poorer. It is an extraordinary set of circumstances that we have a Government who are knowingly pursuing a policy that, according to their own analysis, will make our people and our country poorer.

It is also absolutely extraordinary that we are jeopardising the Good Friday agreement and the peace process that it secured. The right hon. Member for East Antrim (Sammy Wilson) was absolutely right to state that the people of Northern Ireland deserve to know, and must know, the exact basis on which this decision is being taken and what the legal ramifications might be down the track. Nothing less than the constitutional integrity of the United Kingdom is in question here. As many Members have said, it is not a question of the lawfulness of the decision that the Government are taking, as was the case with Iraq, but it is a question of the constitutional make-up and integrity of the United Kingdom. This seems to me, and I suspect to many in this country, an extremely serious and extraordinary proposition—not a normal policy outcome, but one that all of us ought to view as extraordinary, and therefore one around which we must have maximum transparency.

My final point, which my right hon. and learned Friend the Member for Holborn and St Pancras did not make, is about the context in which this decision is being taken. Brexit was born amid a swirl of lies and half-truths, and one of the consequences of the Brexit decision and of the way the campaign was prosecuted—arguably on both sides, but in particular on the leave side—has been a debasing of our democracy and a fundamental erosion of faith in our politics and our democracy. The end point or final decision has the capacity either to compound those problems or to start to solve some of them and to heal some of the broken faith in our democracy. The Government will fundamentally undermine their ability to do that—to bring a decision to the country in good faith that people can believe in and coalesce around, and that can potentially heal some of the divisions in our country—if there are fundamental questions about the manner in which the information is provided. It must be clear to everybody in this place and outside.

If the Government truly want to build bridges between people in this country, there must be maximum transparency, and that includes taking the unusual, unprecedented step of legislating to allow the full legal advice to be published.