EU Withdrawal Agreement: Legal Advice

Robert Buckland Excerpts

Tuesday 13th November 2018 Commons Chamber

[Keir Starmer]

I am grateful for that intervention. I think that everybody across the House will want to know the legal ramifications of the decision that we are being asked to make, which is precisely why this advice should be disclosed at that stage.

I will now develop my third point, which is that legal professional privilege operates differently in relation to the advice of Law Officers than it does to other lawyers. That is an overlooked legal point, but an important one. Let me give the House two examples. First, legal professional privilege applies in ordinary civil litigation, but in general the Government waive that privilege when advice is central to the importance of the case and withholding it might prevent the court from reaching a conclusion that is fair and in the overall public interest. The ordinary rules of confidentiality that apply to all legal proceedings are waived as a matter of convention by the Government even when they are engaged in civil litigation, which is where such rules would be at their height, if they would prevent the court from reaching a conclusion that may not be fair or otherwise in the public interest. In other words, there is a public interest element that comes into the operation of privilege when it applies to the Government.

[The Solicitor General (Robert Buckland)]

indicated assent.

[Keir Starmer]

I see the Solicitor General agreeing; he knows this because he operates this way all the time in the advice that he provides.

The second example is that section 42 of the Freedom of Information Act 2000 provides an exemption for the disclosure of information from the Law Officers that attracts legal professional privilege, but it only applies if the public interest in withholding outweighs the public interest in disclosure. In other words, there is an overriding public interest test in relation to advice provided by the Law Officers that does not apply in the same way to lawyers in private litigation.

My fourth point is a very important one. Confidentiality and privilege can justify non-disclosure, but what the Government cannot do is waive the rule for some MPs and not for others. There are a number of important individuals and groups of MPs whom the Government may well find themselves wanting to persuade to back their deal. In order to do so, they might be tempted to share the advice with those individuals to persuade them of the legal ramifications of the backstop.

I know that the Democratic Unionist party in particular—and everybody who represents anybody in Northern Ireland—is very concerned about that for obvious reasons, and I think I am right in saying that its Members have called for the legal advice to be published. It is acutely important to those in Northern Ireland, but I say to the Government that it cannot be acceptable to share the advice, or bits of the advice, with some in this House and not others. Therefore, if there is any proposal or suggestion that it is to be or might be shared with individuals in relation to this vote, it cannot then not be shared with others, because the ring of confidentiality and privilege will have fallen away, and there could be no justification for it not being available to all.

--- Later in debate ---

[The Solicitor General (Robert Buckland)]

It is more than a pleasure—it is a privilege—to speak at the end of this well-informed, wide-ranging and important debate. May I pay tribute to my right hon. Friend the Chancellor of the Duchy of Lancaster for, in the right spirit, reaching across and making a proper and considered offer with regard to the Government’s position? His contribution reflected very much the careful and deliberate argument of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), who rightly, and perhaps almost inevitably—he will forgive me for saying that—moved away from the wide-ranging terms of the motion and very clearly set out his and his party’s position with regard to the subject matter that he and other Opposition Members wish to deal with.

The hon. Member for Torfaen (Nick Thomas-Symonds) rightly explained the context of the debate. This is an extraordinary time in our nation’s history, with grave decisions to be made by this place that will affect the lives of all of us. I readily accept all that, but I do hope that hon. and right hon. Members will forgive me if, as Law Officers have done in times gone by, and I hope will do so in the future, I dwell a little on the particularly important and unusual role that is filled by both the Attorney General and me within this wonderful unwritten constitution that we all have and celebrate. I will not repeat the proper references made by the hon. Gentleman and others to “Erskine May”, the ministerial code and indeed the Cabinet Office code—they all stand on the record and do not bear repetition.

It comes to this: the quality of collective decision making in government is dealt a fatal blow when, bit by bit, that decision making is subdivided, unpicked and, frankly, made almost impossible even in circumstances as important and exceptional as this. The argument that we are now having boils down to whether Labour Members and others in this House can accept the Government’s clear statement that we wish to provide a comprehensive position statement that deals with not just the economic and political consequences of any withdrawal agreement and future relationship, but the legal consequences of that decision.

We have inevitably and properly focused on the question of Northern Ireland, which the right hon. Member for East Antrim (Sammy Wilson) quite properly raised, together with the hon. Member for North Down (Lady Hermon), who is no longer in the Chamber. We accept all that, but say that, consistent with previous incidences when the Government’s legal position has been set out in a way that has helped debate in this House, that would be the appropriate course of action here, rather than publishing Law Officers’ advice.

Much has been made about the previous occasion when that was done in relation to the Iraq war—in fact it was the only occasion when the full text of Law Officers’ advice has ever been disclosed. It was two years after the event in particular circumstances when, as has already been referred to, the question of the lawfulness of an action by the Government lay at the heart of the debate. We are in a different position now.

Right hon. and hon. Members know that it would be wrong if I were to try to speculate about the content of any advice on this issue that may or may not have been given by Law Officers. I have to remain true to the convention that we have referred to, but doing the best that I can, it would seem to me that using the Iraq precedent, bearing in mind the particular context and the particular circumstances, is not a helpful guide for where we are today.

Instead, I have looked back to the time of a previous Solicitor General, the late Lord Howe of Aberavon— Sir Geoffrey Howe as he was then—who is sadly no longer with us. He was the Solicitor General who took through the accession of this country to the treaties and the European Communities Act 1972. Although he spoke a lot about the legal basis and effects of entry to the then European Economic Community and the other communities, there was no suggestion at that time that any advice that he may or may not have given should be published. That is probably the best parallel that we can draw between the important events of 2018 and the very important events of 1972. If the House can accept that parallel, perhaps it can go on to accept the Government’s position.

The right hon. and learned Member for Holborn and St Pancras sought to make four key points. First, he spoke about the unprecedented context of the negotiations—I agree with that point—and, secondly, he referred to the nature of the advice as general, rather than something specific with regard to an action. Thirdly, he talked about the operation of the convention with regard to Law Officers’ advice and its position regarding privilege. His fourth point was that the advice or parts of it could not be shown to some but not others. These are all fairly reasonable and clear points.

I have already mentioned why I say that although these circumstances are exceptional, there is no reason at all for Law Officers’ advice to be published in the way in which the right hon. and learned Gentleman seeks. However, I want to deal with the point that he makes about—I hope he will forgive me if I use this phrase—a carve-out from the convention on the basis that the Government’s approach should allow for the disclosure of advice when that advice is in general terms. I would resist any suggestion that we should look at the disclosure of Law Officers’ legal advice on anything other than a strict case-by-case basis. In other words, the particular facts of each disclosure will very much depend on whether Law Officers’ advice should be published.

I agreed to some extent with the right hon. and learned Gentleman’s point about legal professional privilege, although I would say that the context of litigation is really the source of any disclosure, rather than a particularly special status whereby Law Officers’ advice is in a different category of legal professional privilege. If anything, there is a particular premium on the care that Government Departments take about the disclosure of Law Officers’ advice for all the consent reasons mentioned by the hon. and learned Member for Edinburgh South West (Joanna Cherry). With respect to the right hon. and learned Member for Holborn and St Pancras, one must look at the context. It is the litigation context that would allow disclosure, as opposed to anything intrinsically to do with the status of Law Officers’ advice.

I have dealt with the past as best I may, but I want to reiterate—I hope for the benefit of the House—why the Law Officers’ convention still remains important. It is important not just when it comes to legal professional privilege, but because it protects the public interest in reflecting collective Cabinet responsibility. That is a vital constitutional principle. Why? Because it would be wrong and damaging to start distinguishing the specifically legal components of collective decision making. This places the rule of law at the centre of Government decision-making processes and at the centre of the minds of all Ministers, not just the Law Officers, and it does not permit a delegation of those important responsibilities by Ministers to me and to the Attorney General.

As one of my illustrious predecessor Law Officers and fellow “sosbanite”, the late Sir Elwyn Jones, wrote:

“the Minister who is advised by the law officers that he cannot do something…is not allowed to say, ‘I cannot do it because the Attorney-General tells me that I cannot.’”

I could not have put it better myself. We are talking about the indivisibility of Government decision making, and I am sure that the House will agree that it is a pretty fundamental point.

It is the role of the Law Officers to guard this principle, however tempting—however convenient—it might be to publish legal advice. We are the stewards; we are here to jealously guard the gate. A decision to disclose Law Officers’ advice requires a very powerful countervailing public interest to override that position. The authority of the Law Officers to disclose the fact that they have or have not advised, and then the actual content of that advice, is rarely sought and rarely given. Contrary to what some people have suggested about the right of the client—in this case, the Government—the content of the advice must not be disclosed outside the Government without the authority of the Law Officers.

In the few short minutes I have left, as I am mindful of the need to move on to other important debates—the Opposition Chief Whip is in his place—I think it would be right for me to refer very briefly to some of the important contributions made by hon. Members. My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the former Attorney General, spoke fundamentally about the need to speak truth to power—if Law Officers cannot do that, where are we? I entirely agree with him.

The right hon. Member for Leeds Central (Hilary Benn) made a really important point about the difference between legal advice and the legal position of the Government. I think he accepted the point that my right hon. and learned Friend the Member for Beaconsfield made in an intervention. I do not wish to repeat that, but I simply reiterate the point for, I hope, the benefit of him and everybody in the Chamber.

I pay particular tribute to my hon. Friend the Member for Banbury (Victoria Prentis), who spoke with authority as a former Government lawyer. She rightly reminded us in detail about the litigation position of the Government and the realities of disclosure, and the particular status of the Law Officers’ advice with regard to the deliberations of Government lawyers. Many other eminent lawyers spoke today—and many eminent non-lawyers as well, Mr Speaker, as I know that you regard the non-lawyer with particular affection, so I do not want to miss them out.

Today’s debate has been about not just dusty conventions, but pretty important constitutional positions. We know that the right hon. and learned Member for Holborn and St Pancras fully understands that. Admirable advocate though he is, I could not help but detect perhaps a little sense of sheepishness in his approach to the conventions. I readily forgive that, and I know that it will make him pause for thought in the days ahead. I hope that it can lead him and his colleagues to accept the clear view, and the clear offer, set out by my right hon. Friend the Minister. I readily adopt and repeat that offer. I hope that it will allow the right hon. Gentleman to draw back and, in the spirit of consensus and constructive dialogue, to accept the Government’s position and not press his motion to a vote today.

Question put and agreed to.

Resolved,

That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.

[Keir Starmer]

On a point of order, Mr Speaker. I seek your guidance and clarity on the fact that the decision of the House that has just been made is clear, and that the Government must therefore respond but, in fairness, respond in the terms that I set out from the Dispatch Box. If I may repeat them for the record, the motion requires the publication of the final and full advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement. This must be made available to all MPs. It is to be published after any withdrawal agreement is reached with the EU, but in good time to allow proper consideration before MPs are asked to vote on the deal. I put it in those terms because it reflects what I said from the Dispatch Box in the debate.