EU Withdrawal Agreement: Legal Advice

Victoria Prentis Excerpts

Tuesday 13th November 2018 Commons Chamber

[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.

--- Later in debate ---

[Victoria Prentis (Banbury) (Con)]

It is a great pleasure to follow all the hon. Members who have spoken so far—they are certainly some of the gentlemen in this House I most admire. A great deal of sense has been talked in an extremely helpful tone.

I should in all conscience say at this point that, as a Treasury Solicitor lawyer from 1997, I provided legal advice to successive Governments, and from 2003, I provided legal advice on the publication of legal advice. Given my experience in the field, I would like to offer a few ideas that I hope will take us further towards an agreement. I hope the House is able to come to a consensus on this important point at this very important time, without pushing the matter to a vote, not least because we have moved a very long way during the debate from the terms of the motion.

The confidential nature of a lawyer’s advice to a client is very well established—I know you have practised in this field, Madam Deputy Speaker. Lawyers do not make decisions; they provide advice. Clients make decisions. The Attorney General is not a member of the Cabinet. He attends Cabinet, and in his very important position—I am not in any way trying to denigrate it—he provides legal advice. The Government can set out the legal position they have come to. The Attorney General can do no more than provide advice given his view. As hon. Members said, it is of course perfectly possible for every other lawyer, in the House and elsewhere, to provide an alternative view. Only the Government can set out their legal position.

Government lawyers, who I think I may be forgiven for saying are great people who do a marvellous job, sometimes against all the odds, have additional duties compared with other lawyers, as the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) said. They have a duty of candour. They are the guardians of the rule of law and the public interest. I am fully aware that they operate to the highest ethical standards. However, their advice is not of a different status from the advice of other lawyers. It is the same sort of advice, which is covered by legal professional privilege across the piece.

I could give examples of the way we provided legal advice on disclosure in the Iraq and Afghanistan litigation, although I am probably governed by the Official Secrets Act so I had better not make them too detailed. It is certainly true that, as Government lawyers, we went above and beyond—we took our duty of candour extremely seriously—but our advice in effect operated on the same plane and under the same system of confidentiality as that of other lawyers. The long-standing convention that we do not publish Government Legal Service advice or Attorney General’s advice is all part of that.

The separation of powers is at the absolute heart of our constitution. That is why we got so over-excited when a certain newspaper called judges “enemies of the people” last year. That was not acceptable. That is not the proper way for the law, the press and Parliament to operate. It is extremely important if we are to maintain our constitution, which we all profess to uphold so dearly, that we treat those different pillars extremely sensitively and keep them separate. Of course, the Government are often a party to litigation—the essence of my job was to defend them in the courts. The Government must not be hamstrung by having to provide their legal advice in public before litigation.

The Minister, who is no longer in his place, mentioned paragraph 2.13 of the ministerial code, which states:

“The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.”

I draw the House’s attention also to paragraph 2.11, which demonstrates that legal officers’ advice is special. Written legal officer opinions, unlike other ministerial papers, are of course made available to successive Administrations.

[Sir William Cash (Stone) (Con)]

Does my hon. Friend recall that that same ministerial code is clear that Law Officers’ advice is meant to be sought on all critical legal questions, but that was not done before the Chequers proposals, when the Cabinet did not have specific legal advice available to it? I raised that point with the Prime Minister in the Liaison Committee.

[Victoria Prentis]

As a humble Back Bencher, I unfortunately have no idea what legal advice was made available to the Cabinet. It might assist the House to know that the ministerial code is clear—I cannot remember in which section, but in the same area—that if a Law Officer gives legal advice to the Cabinet, the whole of that advice must be provided as an attachment for the whole Cabinet to read. It is very important in these difficult times that we ensure that the ministerial code is complied with in full.

I pay tribute to the previous Labour Government and to previous Conservative Governments, who worked hard to improve the transparency of the process of government. Great advances have been made, for example in the field of freedom of information. It is relevant that legal officers’ advice is exempted from the Freedom of Information Act under section 42. It is also true that it is ultimately up to the client to decide whether or not legal advice should be published. I am concerned for future Governments, and for future Government legal advisers: I want them to be able to provide the fullest, frankest and most honest advice possible.

[Angus Brendan MacNeil]

Will the hon. Lady give way?

[Victoria Prentis]

I would rather just finish, if I may.

I am very concerned about the wording of the motion, which is why I hope so much that we will be able to reach a consensus this afternoon. It is very broadly drafted. It refers to

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

[Keir Starmer]

Let me deal with that point. As with the impact assessments, if legal advice were provided in the way that I set out earlier, the question would arise of whether the order, or the Humble Address, had been complied with. In addressing that question, of course anyone judging whether it had been complied with would take into account what had been said at the Dispatch Box, in exactly the same way as happened with the impact assessments. When those were provided, the question arose of whether there had been compliance with what had been asked for, and that was answered by reference to what had been said at the Dispatch Boxes about what was really being asked for. What I have said is important, because it will be me standing here having to make the case that the order has not been complied with. I could hardly stand here and complain about the provision of exactly what I had asked for.

[Victoria Prentis]

That is extremely helpful. I wonder whether the shadow Secretary of State will go one step further, and make it clear that he would like to import into the motion the point that he made about the information being supplied just to Members of Parliament, rather than laid before Parliament generally.

[Keir Starmer]

I have put on the record—three times, I think—that that is what I want and that is what we are seeking, and I absolutely stand by that. Not only could I not properly make the argument if that were the arrangement; I would not do so.

[Victoria Prentis]

I apologise for that slightly unusual exchange, Madam Deputy Speaker.

[Angus Brendan MacNeil]

A few seconds ago, the hon. Lady was arguing that if the legal advice were to be published and more widely known, that would somehow compromise future advice. Is she suggesting that the skills and the general professionalism of legal people would be compromised in future—that they would compromise themselves, and would not give the fullest, frankest and most honest advice because of what might have happened in the past, and would then become different legal people?

[Victoria Prentis]

That is absolutely what I am saying, and that is the basis of legal professional privilege. It is critical that lawyers are able to give a range of views to their clients about, for example, the chances of success in litigation, and the chances of success if various options are adopted. That is why legal professional privilege exists. It is absolutely critical for lawyers and their clients to be able to speak completely frankly to one another.

Let me end by echoing what was said by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) about the ring of confidence. It is important, in my view, that the Attorney General’s advice is sacrosanct and should remain within the Cabinet, because if the ring of confidentiality is broken, that is a very serious matter. It is important for collective government and sensible decision-making that we maintain these conventions, even in difficult times—perhaps especially in difficult times.

[Several hon. Members rose—]