EU Withdrawal Agreement: Legal Advice

Robert Courts Excerpts

Tuesday 13th November 2018 Commons Chamber

[Mr Lidington]

My hon. and learned Friend the Solicitor General tells me that he looks forward to being there. It is not really for me to speak for the Law Officers, but I know that both the Solicitor General and the Attorney General are utterly committed to their parliamentary and governmental responsibilities.

[Robert Courts (Witney) (Con)]

I am grateful to the Minister for the commitment he just gave, but it sounded very similar to the compromise amendment that stands in my name on the Order Paper but has not been selected. Will he clarify that it is a full reasoned position statement laying out the Government’s political and legal position?

[Mr Speaker]

That was a cheeky endeavour on the part of the hon. Gentleman. We cannot debate the terms of an amendment that has not been selected, and the House will know that reasons are not given for non-selection; I had to make a judgment about how best the debate was served. It is rather cheeky, but I am sure that the Minister can deal with it dexterously.

--- Later in debate ---

[Robert Courts (Witney) (Con)]

It is a great honour to say a few brief words in this debate, in which I have been preceded by so many hon. and learned Members with much greater experience than I. At the outset, I associate myself with the comments of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who is no longer in his place, about good governance. My objection to this motion is precisely that—the danger it would cause to good governance—and there is a much better way to provide the clarity that we all want.

I have the most enormous professional respect for the shadow Secretary of State, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), who was Director of Public Prosecutions when I was at the Bar. However, I say with the greatest respect to him that this motion is misconceived for several reasons, which I will briefly describe.

I am grateful to the right hon. and learned Gentleman for clarifying exactly what the Opposition are asking for, but it is unfortunate that the wording of the motion—

“any legal advice in full, including that provided by the Attorney General”—

is now being slimmed down to “the advice provided by the Attorney General in the eventuality of a deal.” It is unfortunate that what is now being asked for is so different from what is on the Order Paper, but he has made his clarification, so I will not detain the House any further on that.

As the right hon. and learned Gentleman will be fully aware from his time at the Bar, as will any lawyer, the reason why I object to the suggestion that the Government ought to publish any legal advice that they are given is that any sound legal advice will by its nature consider the strengths and weaknesses of the client’s case, as well as the strengths and weaknesses of the opponent’s case. That is what any lawyer would do, and it is essential that any document is confidential, because to disclose it would be tantamount to showing the other side one’s view of the weaknesses of one’s case, which would be damaging in this context.

It is a shame that the right hon. Member for Leeds Central (Hilary Benn) has just left his place, because I respectfully disagree with his point that the Government’s suggestion of providing a position statement is essentially the same as providing the advice. It is not—the advice would consider both sides of the argument, whereas the position statement, which I entirely support, will lay out the Government’s case and the reasons for it so that that can be scrutinised. That is not the same as breaching the confidentiality that any lawyer would expect when advising their client.

There are good reasons why such advice ought not to be disclosed. I accept the exceptionality argument that legal advice has been and can be disclosed in exceptional circumstances, but it would set an unwelcome precedent in this case. It would constitute waiving privilege and, in ordering it, we may not realise exactly where it will end. Documents that are not already in the public domain may be referred to in advice and may therefore become disclosable, and the same may happen to advice from civil servants. That would be unfortunate and would set in train a precedent that could have unwelcome ramifications for future Governments. In the interests of good governance, we ought to resist that.

I would not wish to see our undoubted desire for openness, with which I wholeheartedly agree, do irreparable damage to the constitutional framework of our country. I would not want this Government, or any other Government, to find themselves unable to get unvarnished, honest advice because of the fear, or the suspicion, that it might soon become public.

My right hon. and learned Friend the Member for Kenilworth and Southam (Jeremy Wright), when he was Attorney General, put it well, saying that

“Members on both sides will have the chance to understand what the legal basis for the Government’s proposals will be, but there is a distinction to be made between the Government’s legal basis for action and the precise advice that Law Officers give. For the reasons I have explained, I do not think it sensible in what is undoubtedly an open and transparent democracy to publish that advice.”—[Official Report, 26 November 2015; Vol. 602, c. 1468.]

That puts the position succinctly, and I agree.

There is a better way of doing this, and I suggest that the motion fundamentally misses the point. However eminent a lawyer is, we all realise that there will be another equally eminent lawyer who disagrees. The old joke is that if there are two lawyers, there are three or four opinions. What we need to scrutinise is not the opinion of one Law Officer, however eminent, but the basis on which the Government make their case—the legal text of the agreement, the case law and the legal practice around which they build their case. That is what we should be looking for, not the disclosure of one particular legal document.

I am grateful to the House for listening to me. The compromise suggested by the Government is a smoother, better way of achieving the openness that we all wish to see, and I am grateful to them for suggesting it. I commend the Government’s course of action to the House.