EU Withdrawal Agreement: Legal Advice

John Bercow Excerpts

Tuesday 13th November 2018 Commons Chamber

[Mr Speaker]

I inform the House that I have not selected the amendment.

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[Kevin Hollinrake]

On a point of order, Mr Speaker. I seek clarification, because presumably we are going to be asked to vote on the motion on the Humble Address, which clearly says,

“that the following papers be laid before Parliament: any legal advice in full”.

It says “any legal advice”, yet the shadow Secretary of State is now defining the legal advice that he wants to present. What are we to vote on, Mr Speaker?

[Mr Speaker]

How the Government respond to a motion, if it is passed by the House, is a matter for the Government. I do not think we need to invest this with greater complexity than is warranted. The motion is clear and people can make their assessment of it. The shadow Secretary of State has made it clear that it is the final advice that he is seeking. It is perfectly possible for a Member, in the course of a speech, to develop an argument. By definition, that speech and the development of that argument will involve the use of a greater number of words than are contained in a simple motion. How the Government respond to the motion, if it is passed, is then in the first instance a matter for the Government. It is probably best if we now proceed with the debate—

[Victoria Prentis (Banbury) (Con)]

rose—

[Mr Speaker]

Very well.

[Victoria Prentis]

Further to that point of order, Mr Speaker. I apologise, but I remain slightly confused by the difference by the difference between what the shadow Secretary of State said and what is in the motion. I wonder whether you could help me. I would specifically like to know whether the motion relates to the legal advice being provided just to MPs or to its being made public and laid before Parliament, which is what it appears to say.

[Mr Speaker]

Order. I am extremely grateful to the hon. Lady. It might profit her and all Members of the House if they listen to the development of the argument in which the shadow Secretary of State is engaged. Frankly, it is not really very confusing at all. There is a motion, and Members can read the motion and form their own view of it. People can presumably listen to a speech and form their view of the speech. In fact, it is really so very simple that only an extraordinarily clever and sophisticated person could fail to grasp it.

[Keir Starmer]

Let me clarify the position, and then, as I indicated, I will give way. Just to be clear: it is the publication of the final advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement; and that this be then made available to all MPs after any withdrawal agreement is reached with the EU and in good time before MPs are asked to vote on the deal. As for the way in which I put the case, when I last dealt with the Humble Address it was in relation to the impact assessments. I made a number of points from the Dispatch Box that were important to how that was handled afterwards and the agreement that we reached with the Government.

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[Vicky Ford (Chelmsford) (Con)]

I am deeply unclear—are you asking for publication of the final advice or of any legal advice in full that has happened during the entire negotiation? [Interruption.] With due respect, I am being asked for my vote regarding the motion on the Order Paper. Are you asking for what is on the Order Paper, which is,

“any legal advice in full”—

that is, during the whole negotiation? Are you asking me to vote in—

[Mr Speaker]

Order. Will the hon. Lady please resume her seat? I understand that she is seeking clarification, but her intervention is too long and she keeps saying “you”. I am not asking for anything; that is quite important.

[Vicky Ford]

rose—

[Mr Speaker]

No, no, no; I think we have the thrust of it.

[Vicky Ford]

No.

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[Mr Speaker]

Well, I am making a judgment that the right hon. and learned Gentleman has heard the thrust of what the hon. Lady has said. I am not debating that point with her. If she wants to intervene again in due course, she can try to do so, but perhaps she would do me the courtesy of acknowledging that I do know how to chair in this place. I call Sir Keir Starmer.

[Keir Starmer]

I am grateful, Mr Speaker. I have said I think three—

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[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.

[Mr Lidington]

I have been here long enough to know that one should accept rulings from the Chair, but I can say to my hon. Friend that our intention in Government is to provide the kind of analysis that I believe he has been seeking, but which also meets the requests and calls of Members of all shades of opinion on the European issue, not just in my party but in all parts of the House.

I want to put on the record that there have already been discussions through the usual channels on a cross-party basis about how the Government can facilitate the briefing of Members in every party represented in this House. I can give the House a further commitment that those contacts and conversations will continue.

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[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?

[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.

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[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.

[Mr Speaker]

The House has resolved this matter, in that the motion has been put to it and approved without dissent or objection by it. The right hon. and learned Gentleman is absolutely entitled—both in the course of his speech, as he did, and now via the ruse of a point of order—further and better to explain what he seeks, and there is nothing wrong, exceptionable or disorderly about that.

The ruling I give is simply that the motion is effective—I have been advised thus. It is not just an expression of the opinion of the House; it is an expression of the will of the House that certain documents should be provided to it. It is then for the Government to respond, and we await that response, which it is to be expected will be swift. I hope that that is helpful to colleagues.

[Robert Neill]

Further to that point of order, Mr Speaker.

[Mr Speaker]

One can always rely upon a lawyer to have a “further to that point of order”.

[Robert Neill]

I am grateful for your ruling, Mr Speaker. Will you also confirm that nothing in the resolution detracts from or undermines the obligation upon the Law Officers to consider the public interest when coming to a decision on the appropriate form of any disclosure that is made?

[Mr Speaker]

The resolution is as agreed, and I do not think any violence to the position of the Law Officers has been done.

In response to the Solicitor General, who concluded the debate with his characteristic courtesy and good humour, I feel sure that the hon. Member for Banbury (Victoria Prentis) will treasure his tribute to her. It is to be expected that it will be framed, and I rather imagine that she will give it pride of place in her sitting room.

[Ms Angela Eagle]

Further to that point of order, Mr Speaker. I speak as a non-lawyer. Can you confirm that although this is a Government who do not vote when they think they are going to lose, they nevertheless have a duty to honour the motion passed by the House, because it is not just an expression of the Opposition’s view but effective?

[Mr Speaker]

I hope the hon. Lady will understand if I say that I do not dissent, but I do not really think I have anything to add. I have already said that the motion is effective—it is not just an expression of opinion; it is an expression of will—and the Government should regard the motion as effective and respond to it swiftly. I hope that that is satisfactory to colleagues.