Privilege (Withdrawal Agreement: Legal Advice)

John Bercow Excerpts

Tuesday 4th December 2018 Commons Chamber

[Mr Speaker]

The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) has tabled a motion for debate on a matter of privilege, which I have agreed should take precedence today. I must inform the House that I have selected the amendment in the name of the Leader of the House.

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[Keir Starmer]

I will in a moment.

For months the Government have ignored Opposition day motions, and now their tactic has got them into very deep water indeed. The Government cannot now come to this House and say, “We took a political decision not to oppose the making of the order to publish the full and final legal advice by the Attorney General and then we took a decision not to comply with that order, but somehow we are not in contempt of Parliament.”

My third point is about the Government’s amendment in the name of the Leader of the House asking this House to refer the matter of whether the Government’s response fulfils the motion to the Privileges Committee. The short point is this: there is nothing to refer. A binding order was made and the Government are refusing to comply with it. The reality is that, yet again, by their amendment the Government are simply playing for time in the hope that this ends up in the long grass until the crucial vote is long gone.

So this motion is extremely important. It has huge constitutional and political significance. Bringing the motion is not something I have done lightly. [Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.] On the contrary—[Interruption.]

[Mr Speaker]

Order. [Interruption.] Order. I do not need somebody yelling rather stupidly from a sedentary position “Give way.” The right hon. and learned Gentleman will give way if and when he wants to do so, and that is the end of the matter. And the same will apply when the Leader of the House is on her feet. Let me just make it clear: these are extremely serious matters and the public is entitled to expect that this debate will be conducted with courtesy. However long it takes—[Interruption.] However long it takes, that is what will happen.

[Keir Starmer]

I have not taken the decision lightly because I understand the constitutional and political significance of this motion. On the contrary, we have raised points of order on a number of occasions about this order, and we have asked urgent questions, and I have repeatedly urged the Government to reconsider their position both publicly and privately, making clear the consequence of not doing so. But the Government have chosen not to do so. I urge the Government now, even at this eleventh hour, to think again: to pull back from the brink of being found in contempt of Parliament.

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[Several hon. Members rose—]

[Mr Speaker]

Order. The right hon. and learned Gentleman has very clearly completed his speech. To move the amendment, I call the Leader of the House.

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[Andrea Leadsom]

Again, my hon. Friend points out the problem, which is that the right hon. and learned Member for Holborn and St Pancras’s motion seeks that all the information be placed in the public domain without anyone on either side of the House having the ability to consider whether it is in the national interest to do so.

I want to turn now to the contempt motion itself. We recognise that concerns have been raised as to whether the Government’s response meets the terms and spirit of the motion agreed on 13 November. We consider that the spirit and intent of that motion have been fully complied with. As I said earlier, the Government have now provided a 48-page paper setting out the legal effect of the withdrawal agreement, and the Attorney General came to the House yesterday. Anyone present in the Chamber for his statement and his subsequent responses to questions can be in absolutely no doubt that the Attorney General gave a full—[Interruption.]

[Mr Speaker]

Order. The Leader of the House must resume her seat momentarily. Mr Russell-Moyle, you are a very excitable denizen of the House. If you were on your feet, you would be entitled to express your views. When you are in your seat, you are not. I hope that that basic rubric is now clear to you and will require no further explanation.

[Andrea Leadsom]

Thank you, Mr Speaker. Anyone present in the Chamber for the Attorney General’s statement and his subsequent responses to questions yesterday can be in absolutely no doubt that he gave a full and frank exposition of the legal position of the withdrawal agreement. I simply reject any suggestion that the Attorney General has done anything other than treat this House with the greatest respect.

Turning to process, the motion before the House today seeks to find the Government in contempt of Parliament, without having taken the important prior step of referring the matter to the Committee of Privileges, as is normally the case. This is a matter of due process. First, those facing this extremely serious charge of contempt should each be given the opportunity to make their case and to follow the due process of this House. They should be given the opportunity to explain how they have come to their decision about how best to balance the Government’s responsibilities to Parliament with their ministerial duties, including the need to consider the national interest. That opportunity is a vital element of any such procedure, and in this mother of all Parliaments, we are surely nothing if we do not uphold our own constitutional practices in the appropriate way.

The Privileges Committee will also want to consider the question of compliance with the motion in its full constitutional and historical context. The Government would strongly welcome the Committee having the opportunity to consider the more general scope of the motion for the Humble Address procedure, in particular as regards confidential information and the national interest. The Committee could consider these complex matters in a full and impartial way, away from the heat of the present debate and in fulfilment of its parliamentary duty as established by this House. I am grateful to the Chair of the Committee, the hon. Member for Stretford and Urmston (Kate Green), for the conversation that she and I had today in which she agreed that her Committee would be happy to consider that.

The members of the Committee are accustomed to the consideration of complex and contested issues. That is the very essence of their role. Although it would be for the House itself to reach a final determination on whether a contempt had been committed, it should do so on the basis of the full and impartial consideration of the facts by the Committee of Privileges. I therefore appeal to all hon. Members right across the House that if they seek to pass this motion, they should refer it to the Committee in line with our parliamentary procedures. I urge all hon. Members to support the Government’s amendment.

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[Ms Dorries]

I do believe that the two issues were conflated and that that was used to argue for revealing the legal information on the wrong predication.

I have been in a quandary about the vote today. I would like to see the full legal evidence, as I am sure everybody in the House would, but there are conventions and other people to consider, and civil servants fall into that category. They serve us all with true and absolute independence. I do not know how any Government would ever be in this place if we could not depend absolutely on the impartial legal advice we receive from civil servants. If this motion was passed today, what civil servant or legal adviser would ever want to advise any future Government without first putting in place a filter of self-preservation, by considering the advice they give? Who would want to do that as a civil servant? Although I would love to see this legal advice, we have a duty to consider others: the people who serve both the public and us. I have 100% respect for civil servants. They work amazingly hard; they are truly independent; and they serve us without any political bias, and that should absolutely be considered.

On the public interest and the points the Attorney General made yesterday, none of us, apart from him and a select few, knows whether there are any issues in that legal advice that pertain to intelligence, national security or any other of those issues. I have to assume only that when he spoke yesterday about public interest, he was talking in the much broader context. This is an important issue. As he said yesterday,

“There is no procedure by which this House can have redactions or entertain circumstances in which it could weigh the competing public interest against the interest in disclosure, as a judge would do.”—[Official Report, 3 December 2018; Vol. 650, c. 557.]

Given what happened with the publication of the summary of the legal advice during the Iraq war, this inevitability that is happening today should have been foreseen then. We live in a changing world, one where people demand transparency and have a right to know all the full information. I believe that a resolution should have been passed in this House to give powers to this House—after all, Parliament is a court—and a process in this House whereby this House, probably through the authority of your office, Mr Speaker, via the Clerks and independent judicial advice, should be able to take a decision and redact matters of national intelligence and security from legal advice, so that people in this House can see legal advice. I hope that as a result of what has happened today, and given that demands to see legal advice will be made again in the future, the House will take cognisance of that and decide to pass a resolution that will ensure that we do not find ourselves in this position again.

As far as I am concerned, we have been told the worst; the Attorney General pulled no punches. He said:

“There is nothing to see here.”—[Official Report, 3 December 2018; Vol. 650, c. 557.]

But he told us what needed to be seen, so let me again quote his words. He said:

“There is therefore no unilateral right for either party to terminate this arrangement. This means that if no superseding agreement can be reached within the implementation period, the protocol would be activated and in international law would subsist even if negotiations had broken down.”—[Official Report, 3 December 2018; Vol. 650, c. 547.]

He told us the worst: we will be in the backstop in perpetuity. That was as bad as it gets. If we cannot withdraw from the backstop following the decision of this House, we are trapped, as somebody said from a sedentary position yesterday. I believe that no MP with any conscience, given what the Attorney General told us yesterday, could vote for the withdrawal agreement, because he pulled no punches—he told us the worst it can be. I commend him for that.

I want to finish, because I have to, with a comment about us. I listened to the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) when he said what he said at the Dispatch Box. One day, and I hope he is white in hair and long in tooth before he gets there, he may be the Attorney General, and his words may come back to haunt him at some time in the future. I have watched him many times and I could see that thought going through his mind. As a former legal adviser to one of most eminent law firms in the country, he knows full well, when he stands at that Dispatch Box, what he is saying and what he is doing. I hope you never find yourself in the position that you have put our Attorney General in. I would like to finish—

[Mr Speaker]

Order. I cannot quite understand why the hon. Lady thinks that someone of my limited capabilities aspires to the high office of Attorney General.

[Ms Dorries]

I should know better, Mr Speaker, and I apologise. I would like to finish by saying that before we are Attorney Generals, Mr Speakers and Front-Bench spokesmen, we are all MPs—we are all elected Members. I believe that the Attorney General came to this Dispatch Box yesterday with honour and in good faith, and he was honest. If this motion is passed, the integrity, reputation and honour of a good man will be traduced. It would be a disgrace for this House to do that, because any one of us may one day be in that position. I hope that this motion does not pass today for that reason.

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[Several hon. Members rose—]

[Mr Speaker]

Order. Before I call the next Member wishing to speak, may I very gently point out to the House that, although many Members still wish to speak, afterwards we have the business of the House motion to consider and the debate itself with a protected period of eight hours? I make this point simply so that Members can factor that into the equation and no doubt take account of the mood of the House. That is the only consideration I am inviting colleagues to contemplate. From my point of view, there are, outside family, few joys greater in life than listening to right hon. and hon. Members on both sides of House and from all points of view. [Interruption.] I should get out more, somebody says from a sedentary position. I am the servant of the House, so I am not complaining—it is a joy—but people might want to bear in mind that their own enthusiasm to speak is not always matched by a comparable enthusiasm of everyone else to hear them. I call Mr Chris Bryant—and that is not personally directed at him. It was not personal.

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[Several hon. Members rose—]

[Mr Speaker]

Order. In inviting an illustrious lawyer next to address the House, it is perhaps more in hope than in expectation that I reiterate the plea for brevity. I call Bob Neill.

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[The Leader of the House of Commons (Andrea Leadsom)]

rose—

[Mr Speaker]

Before responding to the right hon. and learned Gentleman’s point of order, I will of course hear a point of order from the Leader of the House.

[Andrea Leadsom]

Further to that point of order, Mr Speaker. We have tested the opinion of the House twice on this very serious subject. We have listened carefully, and in the light of the expressed will of the House, we will publish the final and full advice provided by the Attorney General to the Cabinet; but, recognising the serious constitutional issues that this raises, I have referred the matter to the Committee of Privileges so that it can consider the implications of the Humble Address.

[Keir Starmer]

rose—

[Mr Speaker]

I am grateful to the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) for his point of order, and to the Leader of the House for her response. [Interruption.] Some Members are saying, from a sedentary position, “When?” I had intended to say that I expected Ministers to comply with the verdict of the House. If the Leader of the House wants to offer a further and better particular on that point now, or immediately after the point of order from the right hon. and learned Gentleman, she can do so, but if not, I would certainly expect to have fuller information on that matter provided to the House very soon.

[Keir Starmer]

Further to that point of order, Mr Speaker. Will you please advise me what steps we can take to ensure that the process that has just been outlined is completed by next Tuesday, when we vote?

[Andrea Leadsom]

rose—

[Mr Speaker]

It would seem to me to be unimaginable that it would not be, but of course I will hear from the Leader of the House.

[Andrea Leadsom]

Further to that point of order, Mr Speaker. The Government will respond tomorrow.

[Mr Speaker]

I am extremely grateful to the Leader of the House for the clarity of that confirmation. I think that it has satisfied the curiosity of Members, and that we can leave it there.