The House of Commons has voted in favour of a motion stating that the Government was in contempt of Parliament for failing to publish the full legal advice on the Withdrawal Agreement provided by the Attorney-General, Geoffrey Cox. The motion was passed by 311 votes to 293, with DUP MPs voting with Labour. During the debate Sir William Cash made the following intervention:
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.
Keir Starmer (Holborn and St Pancras) (Lab): I beg to move,
That this House finds Ministers in contempt for their failure to comply with the requirements of the motion for return passed on 13 November 2018, to publish the final and full legal advice provided by the Attorney General to the Cabinet concerning the EU Withdrawal Agreement and the framework for the future relationship, and orders its immediate publication.
I move this motion in my name and in the names of the relevant spokespeople for the Scottish National party, the Liberal Democrats, the Democratic Unionist party, Plaid Cymru and the Green party.
The issue before the House on this motion is very simple: have the Government complied with the order made by this House on 13 November this year to publish the final and full legal advice by the Attorney General to the Cabinet concerning the EU withdrawal agreement and the framework for the future relationship, yes or no? That order was binding. Mr Speaker, on 13 November I sought your advice on that issue and you ruled in the following terms:
“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.”—[Official Report, 13 November 2018; Vol. 649, c. 236.]
Yesterday, the Government published a reasoned position paper. That was not legal advice. It simply described the deal: it was a synopsis; it was in the nature of an explainer—an explainer having already been published when the deal was published. It was a long way from legal advice. The Attorney General made a statement to the House and then answered questions, but the Government did not publish the full and final advice by the Attorney General to the Cabinet. That is the long and short of it. The Government are wilfully refusing to comply with a binding order of this House, and that is contempt.
Yesterday, the Attorney General as good as admitted it when he said:
“I wish that I could comply with the request of this House but if I did, I sincerely believe that it would not be in all of our interests.”
And slightly later he said:
“although the House says that I should disclose, I believe that the public interest compels me not to. I am sorry.”—[Official Report, 3 December 2018; Vol. 650, c. 534 and 564.]
That is a plea of mitigation; it is not a defence.
I make three points about the Government’s position. First, as the hon. Member for North East Somerset (Mr Rees-Mogg) made clear yesterday, for the Attorney General to say that in his view it is not in the national interest is not good enough. The hon. Member for North East Somerset went on to say:
“When the Government lose a vote, they must follow the will of this House under an Humble Address, according to all precedent. It is no longer a matter for the Government to judge; it has been decided by this House, which is a higher authority.”—[Official Report, 3 December 2018; Vol. 650, c. 563.]
My second point is this: if the Attorney General feels so strongly about this matter that he is prepared now to put the Government in contempt of Parliament for refusing to comply with a binding order, why on earth did he not vote against the order in the first place, or anybody else on the Government Benches? That was not an oversight: the Government knew very well what was being asked for. The Attorney General must have known what was being debated and voted on. Yet it appears from answers given by the Attorney General yesterday that he was not asked before that vote for his view on the wisdom of not voting against the order, nor did he offer any advice, directly or indirectly.
Again I quote the Attorney General:
“I had no discussions with the Chief Whip on this subject. None was sought.”—[Official Report, 3 December 2018; Vol. 650, c. 569.]
I do not doubt the Attorney General’s word for a minute, but really—before that vote nobody asked the Attorney General’s views on the consequence of not opposing the order?
The truth is that the decision not to oppose the order was a political decision, taken by the Government because they feared they would lose the vote. They did not want the short-term humiliation of losing a vote, and the price of that was higher than voting against the order—and none of them did that. That is not the first time that has happened.
Sir William Cash (Stone) (Con): I must say that I found the answers given by the Attorney General yesterday extremely difficult to understand in the terms in which they were expressed—that is, of relating to the national interest, because that is a question that is contained in the results of the referendum and the European Union (Withdrawal) Act 2018. Following reports that I have heard, I also find it most unsatisfactory that this issue is regarded as a parlour game, and that we have been told to stop messing around with the process and to grow up. I think that that somewhat underestimates the significance of what we are dealing with here, but I will leave it at that, because people in these circumstances sometimes use language that underestimates the importance of the matters that are being dealt with.
I would like to say to the Leader of the House and to the Law Officers that the question of conventions turns on the reason for the rule. In this context, the reason for the application of this particular convention, which includes the question of the ministerial code, clearly demonstrates that, unless we know what the Attorney General has actually given by way of a full disclosure, it is extremely difficult to know whether or not the public policy that has been pursued is consistent with the legal advice that he gave.
Ivor Jennings was one of the greatest constitutional authorities on these matters. He said that
“conventions are observed because of the political difficulties which arise if they are not.”
I suggest that nothing could better illustrate the current situation, and in particular the issues relating to the ministerial code. The ministerial code states:
“The Law Officers must be consulted in good time before the Government is committed to critical decisions involving legal considerations.”
The Chequers proposals lie at the heart of the beginnings of the issues with which we are considering the withdrawal agreement, and I have been informed that the Law Officers were not consulted before the Chequers proposals. This has had dire consequences. Indeed, I said to the Prime Minister on 9 July that I did not think she would be able to reconcile the Chequers proposals with the express repeal of the European Communities Act 1972 in the European Union (Withdrawal) Act 2018, which was passed on 26 June, 16 days before Royal Assent was given. We were then presented with the Chequers proposals. Everyone knew, when Royal Assent was given, that the express repeal of the 1972 Act had been enacted, yet it was clear, because it happened only a few days later, that an 80-page White Paper was being produced, the effect of which was to demonstrate that the 1972 Act was going to be considerably altered. I regarded that as a massive breach of trust, but it could have been resolved if we had had the full advice of the Attorney General at that time.
Under that same convention, and with respect to the present withdrawal agreement, it is essential for us to know now whether the present Attorney General gave advice on the issue of incompatibility between the express repeal of the 1972 Act in the European Union (Withdrawal) Act and the withdrawal agreement. There is no indication in the Attorney General’s introduction to his legal statement yesterday that he addressed that question as a matter of fundamental constitutional importance. Indeed, he states that the agreement needs a new Act of Parliament in domestic law, but as I pointed out in The Sunday Telegraph that is no more than a wing and a prayer.
I asked the Prime Minister about such matters during her statement last Monday and in the Liaison Committee, but I received no satisfactory answer. I also asked the Attorney General a similar question yesterday, requesting that he draw his attention to a Queen’s bench division that was cited as a precedent for the disclosure of the Attorney General’s advice. There are four other precedents, but Factortame is particularly significant due to the incompatibility between the 1972 Act and the withdrawal agreement.
If we do not have the full disclosure of the Attorney General’s opinion, that is relevant to the question of whether the actual withdrawal agreement itself is invalid under the Vienna convention, because a fundamental failure to comply with internal domestic constitutional law amounts to grounds for the invalidity of such a withdrawal agreement.
(…) If there is a danger that the withdrawal agreement could be invalid, that is a matter of fundamental importance on which I would have expected the Attorney General to include his opinion, but there is no evidence whatsoever that he referred to that in his opinion, and that is why we need full disclosure. I also understand that there are sheaves of papers within governmental circles unpacking the repeal of the 1972 Act with respect to the prospective withdrawal and implementation Bill, which is again a matter of extreme public importance. By any standards, all these matters fall not only within the ministerial code, but within what I would have hoped and expected the Attorney General to deal with in his opinion and the statement he gave yesterday, but there was nothing there to give me any comfort whatsoever.
To say that we should move on and get real and that what the Attorney General thinks is in the national interest actually is in the national interest does also bear on the question of whether the European Union (Withdrawal) Act is a matter of extreme public interest and fundamental importance. The failure to address that question in the introduction and in the legal statement seems to be a mistake of the first order and, furthermore, to be inconsistent with what I would have expected from the legal opinion of the Attorney General.
As to the role of the Attorney General, I simply refer to the authoritative work “The Attorney General, Politics and the Public Interest”, published in 1984 and written by Professor John Edwards. In his chapter dealing with ministerial consultations with the Law Officers, it is made clear that all legal advisers from all Departments will ultimately turn on the view of the Attorney General. Edwards states that there will be times when the Attorney General, perceiving the legal implications of a Department’s proposed course of action—in this case, No. 10 and the Department for Exiting the European Union—will find it necessary to oppose a Minister’s preferred policy. Such opposition must also derive from the legal implications of the proposed policy.
As Edwards says on page 190 of his authoritative work, for the Government to reject such advice would be quite exceptional and would reasonably lead to serious questioning by the Attorney General himself of his continuing to serve as the Government’s chief legal adviser. Without full public disclosure of his opinion, it will be impossible to get to the bottom of all the considerations that are at the heart of the issue of public trust to which the former Secretary of State for Exiting the European Union referred regarding the manifesto and the reasons for his resignation and the conduct of the Government, to which I have referred myself in terms of broken promises made in the House recently.
The reason why my European Scrutiny Committee is making a full inquiry into this situation is, in a nutshell, because we want to get to the bottom of the conduct and the processes and the outcome of these negotiations, and we will do so by taking evidence. I trust that the Government will take note of the seriousness of the suggestions and the arguments that I am putting forward, because they go to the heart of public trust, the referendum vote itself, the repeal of the 1972 Act, whether the Attorney General has fully addressed the consequences for the withdrawal agreement of the opinion that he has given, which we have a right to see, and whether it is really in the public interest for it not to be disclosed.