Legal Advice: Prorogation

John Bercow Excerpts

Wednesday 25th September 2019 Commons Chamber

[The Attorney General]

I do not know whether in the hon. Gentleman’s practice at the Bar he felt that just because he had given advice that might not have been upheld by a court he had no credibility. That is an absurd and ridiculous proposition. Furthermore, it was advice that was agreed with by the first instance court in Scotland and by the Lord Chief Justice of England. Is the hon. Gentleman calling for his resignation as well? Is he calling for the resignation of the Master of the Rolls? Is he calling for the resignation of the President of the Queen’s bench division? Is he calling for the resignation of Lord Doherty? [Interruption.]

[Mr Speaker]

Order. If the Attorney General could resume his seat momentarily, I should be deeply obliged to him. The Attorney General has a distinctive and resonant baritone, which is well known throughout the House, but it is a challenge even for him to be fully heard if there is constant catcalling. There will be ample opportunity for colleagues to question and probe the Attorney General—of that they may be assured—but I wish myself to listen to his mellifluous tones.

[The Attorney General]

I will say one thing for the Scottish National party and the hon. and learned Member for Edinburgh South West (Joanna Cherry) if I may. Whereas in the hon. Gentleman’s case, no shameless piece of cynical opportunism is left on the floor, the hon. and learned Lady is a lawyer and a Queen’s counsel, and she knows that it is the most puerile and infantile of criticisms to say about a lawyer whose advice has been upheld by courts right the way up to the Supreme Court that somehow or other he should be held culpable for that advice. The fact of the matter is that this advice was sound advice at the time. The court of last resort ultimately disagreed with it, but in doing so it made new law, as it was entirely entitled to do.

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[The Attorney General]

Let me say to my right hon. Friend that the Supreme Court invoked the principle of parliamentary sovereignty and the convention of ministerial accountability to Parliament as a justification for making justiciable the decision to prorogue. That is what it was entitled to do, and it effectively amounts to converting a political convention into a legal rule. That, traditionally, was not thought to be possible; the Supreme Court has decided that it is, and I certainly do not in any way complain with its right to do so. I agree that Parliament has to determine the terms on which we leave, but this Parliament has declined three times to pass a withdrawal Act to which the Opposition had absolutely no objection. [Interruption.]

[Mr Speaker]

Order.

[The Attorney General]

We now have a wide number in this House setting their face against leaving at all. When this Government draw the only logical inference from that position, which is that we must leave therefore without any deal at all, they still sets their face, denying the electorate the chance of having their say in how this matter should be resolved. This Parliament is a dead Parliament. It should no longer sit. It has no moral right to sit on these green Benches, and whatever—[Interruption.]

[Mr Speaker]

Order. The House must come to order. We have a lot of business to transact: there is a further urgent question and there are no fewer, I say for the benefit of those observing, than five ministerial statements. The Attorney General must be heard, and so, I hope, will lots of other people.

[The Attorney General]

They don’t like to hear it, Mr Speaker. They don’t like the truth. Twice they have been asked to let the electorate decide whether they should continue to sit in their seats, while they block 17.4 million people’s votes. This Parliament is a disgrace. Given the opportunity—[Interruption.] Since I am asked, let me tell them the truth. They could vote no confidence at any time, but they are too cowardly to give it a go. They could agree to a motion to allow this House to dissolve, but they are to cowardly to give it a go. This Parliament should have the courage to face the electorate, but it won’t, because so many of them are really all about preventing us from leaving the European Union at all. But the time is coming, Mr Speaker, when even these turkeys won’t be able to prevent Christmas.

[The Attorney General]

All I am suggesting to the right hon. Gentleman is that he give his constituents the chance to elect him again. [Interruption.]

[Mr Speaker]

Order. I say to the hon. Member for Kingston upon Hull East (Karl Turner) that, as a result of my prodigious efforts last week, audiences in New York, Boston and Zurich are now aware that he is the noisiest Member of the House. I always enjoy listening to him, but preferably when he is on his feet rather than in his seat.

[The Attorney General]

If the right hon. Member for Delyn (David Hanson) is so confident that his electorate will consider that his moral right to sit here is so strong, why does he not submit it to them now? All we need—I offer this to the Labour Front Bench—is a one-line Bill, which we could put through with Mr Speaker’s help, to fix the date of a general election by a simple majority, and we could have the election. Why does he not tell his Front Bench to put his confidence in his constituents to the test?

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[The Attorney General]

I know that my right hon. Friend knows that, when it comes to the judges—though not to this shower on the Opposition Benches—I want to be, if I can, respectful and careful. It is important that we understand that these judges are protectors of all our freedoms and all our rights—

[Mr Speaker]

Order. I do not normally offer stylistic advice to the Attorney General, but his tendency to perambulate while orating is disagreeable to the House. He should face the House with confidence and assurance, and an acknowledgement that the House wishes to hear his every utterance.

[The Attorney General]

I wonder if you, Mr Speaker, in a well-earned retirement, would like to give lessons to Front Benchers. It could be the beginnings of a new and very glorious—or even more glorious—career.

I have now lost my thread entirely—

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[Mr Speaker]

I think, but I am not sure, that the Attorney General is seeking to help the hon. Gentleman.

[Charlie Elphicke (Dover) (Ind)]

In applying this new legal principle that has been created or invented by the Supreme Court, how many Prorogations in the last century would have passed muster to the test that has been created? How can this longest Session of this House since the civil war now be lawfully brought to an end, and a Queen’s Speech lawfully brought forward? Finally, is Royal Assent a proceeding in Parliament?

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[The Attorney General]

I am very sorry but I did not hear a word of that.

[Mr Speaker]

There was a very unattractive rant fest taking place between hon. Members on opposite sides of the House, gesticulating aggressively at each other. It is a very undesirable state of affairs. Let us have a bit of calm and have the question again and the answer, but we want to proceed very quickly.

[Jeremy Lefroy]

You are most generous to hear me again, Mr Speaker. Does my right hon. and learned Friend agree that if Her Majesty’s Government wish to push their prerogative powers to the very limit, as they are entitled, if perhaps not always well advised, to do, the kind of consequences we have seen in the past few days are inevitable?

[Several hon. Members rose—]

[Mr Speaker]

Order. A number of hon. and right hon. Members are standing to contribute who were not standing at the start of the statement. That in itself is perfectly reasonable and I will seek to accommodate them if a thought has occurred to them that they want to convey, or a question that they want to put would otherwise go unasked, but once those who are standing have asked their questions pithily, we must move on to the next urgent question. I call Clive Efford.

[Clive Efford (Eltham) (Lab)]

The Attorney General has tried to take the high moral ground, but I have to wonder what morals were applied by the Government that led to yesterday’s Supreme Court decision. When did he first become aware that the advice given to Her Majesty the Queen, the Speaker of the House and the House itself about the reasons for Prorogation was not true?

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[Several hon. Members rose—]

[Mr Speaker]

Extreme brevity is now required. Single-sentence questions, please, without preamble. I call Lady Hermon.

[Lady Hermon (North Down) (Ind)]

Thank you, Mr. Speaker. I have listened very carefully to the Attorney-General—I have not agreed with a fraction of what he has said—but I would like him to answer a specific question. Did it never cross his mind that if the Prime Minister made a ridiculous decision to prorogue Parliament for five weeks in the run-up to Brexit, which is the greatest constitutional change to the UK for years, the courts would rule that to be an unlawful Prorogation of Parliament?

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[Emma Hardy (Kingston upon Hull West and Hessle) (Lab)]

On a point of order, Mr Speaker.

[Mr Speaker]

If the point of order relates to the matter of which we have just treated, I will take it.

[Emma Hardy]

During the urgent question, the Attorney General made a joke about the phrase, “When did you stop beating your wife?” Part of the reason people are so upset about Prorogation is that the Domestic Abuse Bill has fallen, as my hon. Friend the Member for Nottingham North (Alex Norris) just said. May I seek your advice on how the Attorney General can perhaps learn to moderate his language and not make jokes about domestic violence?

[Mr Speaker]

It is open to the Attorney General to respond if he wishes, although he is not obliged to do so.

[The Attorney General]

If I have given offence, I certainly did not mean to. It is an old saying at the Bar, which simply relates to a cross-examination technique of asking a question that presumes the premise. It is the way in which we were taught. If I have given offence, I apologise.

[Mr Speaker]

I thank the Attorney General for responding. It is a matter of extreme sensitivity and it is incredibly important that we are sensitive to the wider implications and interpretation of what we say. Society’s mores change and sometimes one can find that things that one has freely said in the past without causing offence can no longer be said without causing offence, but each Member must make his or her own judgment. The Attorney General made his and he has said what he has said. I thank him for that.

[Craig Mackinlay (South Thanet) (Con)]

On a point of order, Mr Speaker. I apologise for not giving notice of this point of order, but I seek advice that is relevant to our discussions. We have heard much about the way in which the Supreme Court has extended its remit to the actions of the Executive and how that may play out in future. Can you give advice, perhaps to your successor, about whether the Speaker’s actions and decisions should be similarly subject to judicial review and how that may work in future?

[Mr Speaker]

I am extraordinarily grateful to the hon. Gentleman, but as an attempted point of order, frankly, in old-fashioned O-level terms, with which I am familiar and of which the hon. Gentleman is probably aware, it would get an Unclassified. It was not even a good try. I do not bear the hon. Gentleman any ill will, but if people are going to have a go at these things, a degree of nuance, subtlety and ingenuity would at least command respect. There is a grade and I am afraid that the attempt was way below it.

[Hannah Bardell (Livingston) (SNP)]

On a point of order, Mr Speaker.

[Mr Speaker]

I will take the point of order if it is on the matters we have been discussing and not beyond.

[Hannah Bardell]

Apologies for not giving you notice, Mr Speaker. During the previous exchanges, the Attorney General repeatedly said that this Parliament was a dead Parliament. He said that it should no longer sit and that we had no moral right to sit on these green Benches. How can we ensure that the Attorney General makes a statement to retract those words? They are beneath him and this place. I was sent here by the people of Livingston and of Scotland, as my colleagues were sent by their constituents. Our position should not be undermined by such flippant and ridiculous language.

[Mr Speaker]

There is an important issue here. Is something that causes offence required to be withdrawn? I say in all candour to the hon. Lady, whose sincerity I respect, that the answer to that is no. Lots of things are said that may cause offence or provoke umbrage and about which there will be dispute, but there was nothing disorderly about what the Attorney General said. The hon. Lady has registered her view with considerable force and alacrity, and it will be on the record for her constituents to observe. No impropriety has taken place.