EU Withdrawal Agreement: Legal Advice — House of Commons, 2018-11-13
Topic: International Affairs
Dominic Charles Roberts Grieve (Conservative, Centre-right): I understand my right hon. Friend’s point. It will be a matter for the Government to determine how they wish to respond at the end of the debate. What I will seek to do now is to set out the reasons why I think the approach the Opposition have taken in the motion is mistaken, and I want to conclude as quickly as possible The Attorney General has to speak truth to power. In doing that, he must be in a position to produce legal advice to the Government which is there for their consumption. By demanding that it should be published, we are immediately beginning to skew that process, because it will be prepared with a view to publication. The right hon. and learned Member for Holborn and St Pancras made the point that there may be a difference between advice about what is lawful and a survey of what a treaty adds up to in terms of the obligations it places on this country. I would not be at all surprised if, for example, in the course of doing that the Attorney General might not have to respond to questions that have been transmitted to his office through Cabinet Ministers with queries which, although they may be irrelevant to his advice, might pertain to what had been said in the course of an international negotiation with a third party and therefore would be something we would not wish to put into the public domain. We cannot predict how such advice will be put together It seems to me that that precisely highlights why one should distinguish between advice that is produced by a Law Officer, subject to the usual rules of legal professional privilege—I agree with the right hon. and learned Gentleman that if it starts to be published partially it has to be shared with everybody; on that we all agree 100%—but that should be compartmentalised away from what we should be getting from the Government, which is a full statement of the Government’s legal analysis and their collective position. Doubtless, it will be heavily informed by the Law Officers’ advice. As I said, not entirely tongue in cheek, if the document setting out the Government’s legal position and their evaluation of the implications of the treaty is at variance with what the Attorney General has been saying to the Cabinet in informing them as to whether to accept the decision or not, I would not expect the Attorney General to still be in post by dusk that evening. It would be his clear duty to leave office immediately, because he could not continue to work as a Minister within the Government I therefore believe, particularly in the light of the assurances given by the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office, my right hon. Friend the Member for Aylesbury (Mr Lidington), that in those circumstances and with the assurances he has provided, the House is now beginning to get the reassurance it requires that, first, this process, when it comes to a deal, will be taken in a measured and sensible way, and with a full opportunity for Members to consider the legal implications properly; and secondly, as I suggested, a Law Officer, who customarily can sit on the Government Benches and intervene in debate does so as we go through the Bill to clarify points that may need clarification. That used to be done all the time. I tried to restore it, but for various reasons it seemed to have gone out of fashion when I was in opposition. My hon. and learned Friend the Solicitor General has been pretty assiduous at doing that, and the Attorney General can do it too. That should lead to the House having all the information it needs without breaching a convention which in my view, for the very reasons I have just heard also apply for the Scottish Government, is really important. I do not think it is necessary or desirable that we should be considering such a breach for the purposes of reaching the proper conclusion to these very important debates I simply urge the House to consider carefully what has been said and express the hope that it will be possible to proceed in a way that does not breach what I think is a really fundamental and important convention. As I know from my time as Attorney General, it is of the utmost importance that the dialogue between the Law Officers and Government, whom they are there to serve, can be carried—