EU Withdrawal Agreement: Legal Advice

Peter Grant Excerpts

Tuesday 13th November 2018 Commons Chamber

[Peter Grant (Glenrothes) (SNP)]

I am grateful for the chance to lead for the SNP in the debate. May I commend Opposition Front Benchers for allocating time to debate what is clearly a fundamentally important question? While I agree that the wording of the motion could have been tighter, the Government had to amend their own European Union (Withdrawal) Bill about 100 times in the Lords because the version that had passed through the Commons was such a mess that the finest legal minds in the country did not have a hope of making any sense of it.

I note with some encouragement the comments from the Minister, and it seems to me that there is a way of getting some kind of agreement. What is fundamentally important, however, is that when 650 of us take the most important decision we will ever take in our lives—short of a decision to go to war—every one of us is absolutely certain that we are armed with the best information and advice that can possibly be given.

[Tom Tugendhat (Tonbridge and Malling) (Con)]

Does the hon. Gentleman agree that there are other avenues for getting that advice? I have been approached by any number of legal charities, which have offered advice on many different things, but particularly on the EU. I know that Speaker’s counsel has been extremely generous in giving advice to Select Committee Chairs, and such advice is certainly available to me. I also know that many other people in the House can give advice—not least the Opposition spokesman, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), whose legal intellect is, frankly, second to none. The ability to acquire legal advice in this place is enormous, so it seems odd to force the Government to disclose their own advice, and therefore to undermine their own ability to pursue a case, when other avenues are available.

[Peter Grant]

I was about to say something very similar. Others in this House are much better qualified than me to decide what mechanism would best make sure that all Members of Parliament have possession of the facts, information and advice that we need. Whether that is achieved through the exact wording of the motion or a better way can be agreed in discussions elsewhere is not for me to rule on.

I come to this debate with one significant disadvantage compared with a lot of others who will take part in it, and with one significant advantage. The significant disadvantage I have is that I am not, have never been and never intend to be a lawyer. The significant advantage I have is that I am not, have never been and have no intention to be a lawyer. That means that I have no conflict of interest in saying that the law and lawyers are there to serve the public. Parliament and parliamentarians are here to serve the public, not the other way round. In this context, the law and lawyers are here to serve Parliament; Parliament is not here to serve the lawyers.

A number of really extraordinary concerns have been raised about what the motion, amended or otherwise, would mean if it was agreed. As far as I can see, this is not about abolishing the convention that legal advice is privileged or confidential, or about insisting that from now on every Attorney General who ever gives evidence has to do so on the assumption that it will be on the front page of the Daily Express by the next day. It is not about that at all. Simply reading the wording of the motion makes it perfectly clear that that is not what is being asked for.

I have heard concerns from Conservative Members. People are worried that they will be expected to vote for something but then, after they have done so, somebody else will interpret what their vote actually means. Some of us have been thinking about that since 23 June 2016, because that was exactly what happened to 33 million people after they cast their vote in the EU referendum. There is a significant danger that that is precisely what has been set up to happen to us when we are asked to vote on the Government’s deal or no deal. We will be asked to give a commitment to agreeing to something without really understanding what we are being asked to vote for. When something is so fundamentally important, that is simply not acceptable.

We should be under no illusions whatsoever about the consequences of our getting it wrong when we come to vote on a proposed deal. Whether we end up with a bad deal or no deal, the Government’s own analysis points to an economic hit that would be bigger than the crash of 2008, including a 9% reduction in economic growth; hundreds of thousands of jobs put at risk; £2,300 per year out of the pockets of every family in Scotland; the rights of millions of citizens called into question; and, as has been mentioned, the very real risk of undermining that precious but fragile peace that allows people on both sides of the Irish border to do what most of the rest of us take for granted—live normal lives. It would be a criminal dereliction of the duties entrusted to us if we willingly took that decision in the knowledge of the possible consequences and the fact that there was expert advice about what those consequences might be, but did not even ask what that advice said.

[Angus Brendan MacNeil (Na h-Eileanan an Iar) (SNP)]

My hon. Friend hits on a very important point about the best possible deal for Britain, or a good deal or whatever—I think I heard that on Radio 4 this morning. The reality is that whatever deal is good at the moment is the equivalent of having crashed the Rolls-Royce and heading down to the car shop to get the best second-hand car for Britain. What we have at the moment will not be repeated—things will be an awful lot worse—but the media are parroting a line and misleading the people. What happens under Brexit, deal or no deal, will be a lot worse than what we have today, and the chickens will come home to roost for this Government very quickly.

[Peter Grant]

I am grateful to my hon. Friend for his comments. My views are perfectly clear: I do not think there is such a thing as a Brexit deal that can come close to being as good a deal as we have just now. If that argument is not going to be rerun—if we are not going to get a chance to correct the mistakes that have been made in the past—so be it, but it is my responsibility, and the responsibility of all of us, to make sure that the Brexit that is agreed is the least damaging that is possible.

I know that some Government Members will be concerned—some have already raised concerns—about setting a dangerous precedent. May I remind them that the Government’s mantra for months has been that this is an unprecedented situation? In an unprecedented situation, precedents do not apply. How can what we do in response to an unprecedented situation set a precedent for what happens next, unless the Government propose to hit us with more unprecedented disasters through their own blundering incompetence?

[Paul Masterton (East Renfrewshire) (Con)]

Earlier this year, when the Lord Advocate was asked to release some of the legal advice that he gave to the Scottish Government, Mike Russell stood in the Scottish Parliament and said that that would not be done because it would set a very dangerous precedent, repeating much the same justification that we have heard today. Will the hon. Gentleman explain why those justifications made by the Scottish Government were acceptable, but when those same justifications are made by the UK Government, they are objectionable?

[Peter Grant]

As the hon. Gentleman knows perfectly well, the two situations are not only not identical but significantly different. Members of the Scottish Parliament were not about to be asked to cast a binding and final vote on the most important decision they would ever take, to take part in a vote that could have cost £2,300 for every family in the country, or to agree to something that would take 9% off the economy. They were not about to be asked to vote on anything, so the two situations are significantly different.

I am glad, however, that the hon. Gentleman raises the example of Scotland, because the “Scottish Ministerial Code” explicitly recognises that there will be exceptional circumstances when it is in the balance of public interest to disclose legal advice—either in its entirety or in part—that has been given to Ministers. Having raised the question of Scotland, the hon. Gentleman has actually destroyed one of the biggest arguments that those on his own side make. If the argument is—[Interruption.]

[Mr Speaker]

Order. There is a mildly disorderly atmosphere in the House. The hon. Gentleman who speaks from the Scottish National party Front Bench is, in my experience, unfailingly courteous and a mild-mannered fellow—[Interruption.] Order. I do not know what he says on Twitter. An hon. Member chunters from a sedentary position that the hon. Member for Glenrothes (Peter Grant) is not quite so obliging or courteous on Twitter. I do not waste my time listening to those ruminations, which are of no interest whatever to the Chair. I am simply saying that the hon. Gentleman ought to be able to develop his argument without excessive noise.

[Peter Grant]

Thank you, Mr Speaker. As I was saying, if the Government’s key argument is that it is unworkable to have a set of rules that allows legal advice to Ministers to be disclosed under exceptional circumstances, that is shown to be nonsense by the fact that in Scotland a different set of rules applies, and does so very effectively.

Related to the precedent argument is the claim that Parliament is not allowed to see Government legal advice under any circumstances. Why not? The reason given is simply that we are not allowed to. I would love someone on the Government Benches who believes in the absolute sovereignty of Parliament to explain why this supposedly absolutely sovereign Parliament is not allowed to do anything it likes, because that is the argument we often hear from them. I do not believe in the absolute sovereignty of Parliament, but for those who do, how can it be that there are any restrictions on what this absolutely sovereign Parliament can ask or instruct Ministers, who are accountable to it, to do on our behalf?

[Angus Brendan MacNeil]

Will my hon. Friend give way?

[Peter Grant]

I will not take any more interventions.

As has been said, the last time there was such a significant argument about disclosure to Parliament or providing it with Government legal advice was probably in the run-up to the decision to go to war in Iraq. SNP Members and others in the House argued then that Parliament should have sight of the Attorney General’s legal advice before being asked to vote in favour of war. The SNP was vindicated, as were others. We were shown to be right in asking for that advice to be disclosed, but tragically it was too late for it to make any difference. At the time, Parliament was in possession of the equivalent of what today’s non-selected amendment asks for—the Government’s version of advice, and of such parts of arguments, and of information and intelligence dossiers, that the Government wanted Parliament to see—but not of anything that did not suit the Government. Parliament was given incomplete and, frankly, biased and misleading advice, and it made a catastrophically bad decision as a result. If we are worried about precedent, we should think about the precedent that that might set. I do not believe there is any chance that MPs would have supported the invasion of Iraq if they had been in full possession of the facts that the Government had at the time.

Two days ago, I laid a wreath at a memorial to two young men from Glenrothes who I am convinced would be alive today if Parliament had had such advice at the time it took that decision. I am not suggesting, and nobody should suggest, that a bad decision on Brexit will lead directly to thousands of deaths, but it will lead to enormous financial hardship and huge social upheaval for millions of citizens—perhaps tens of millions—and it could set off an uncontrollable chain of events with the potential to result eventually in the deaths of innocent civilians in parts of these islands.

I want the House to be given the best possible opportunity to reach not the best Brexit decision, but the least worst Brexit decision. In order to do that, we need at our disposal all the advice and information that anybody has been able to provide. If parliamentary precedent or convention, or medieval practices, prevent us from doing our job properly, they have be to be either set aside or changed. The situation is too important to allow medieval procedures to get in the way of the right decision. The Government have already set aside the Sewel convention because we are in an unprecedented position. I suggest that the convention on the absolute confidentiality of legal advice has to be varied on this occasion to get us to the correct decision.

I want every MP who shares collective responsibility for the decision we will take in the near future to know that whether our constituents agree or disagree with our decision, each of us will have exercised our judgment in full possession of the facts. We will then be able to take the responsibility for the decisions that each of us will take. I urge the House to support the motion.

[Mr Speaker]

Has the hon. Gentleman completed his oration?

[Peter Grant]

indicated assent.

[Mr Speaker]

We are immensely grateful to the hon. Gentleman. The House will hear in a moment from Mr Dominic Grieve. I am not introducing a time limit at the start—I think there are colleagues from whom the House will want to hear—but we will have to keep it under review.