GOVERNMENT FOUND TO BE IN CONTEMPT OF PARLIAMENT FOR THE FIRST TIME EVER.
So screeched all the newspaper headlines earlier this week. The innocent reader will have conjured up pictures of the Lord Chief Justice of England, the President of the Supreme Court, the Master of the Rolls, the President of the Family Division and the Chancellor of the High Court sitting together and solemnly declaring the government to have been in contempt of Parliament.
In fact, nothing like that happened. Instead, a whole lot of politicians, acting entirely from political, not judicial, motives (though endlessly and pompously asserting that they were the “High Court of Parliament”) decided to kick the government where it hurts and dress the assault up as a judicial and not a political act.
But let me start at the beginning.
A little while ago a motion calling for the government to disclose the full and final legal advice on the Withdrawal Agreement given to it by the Attorney General was tabled before Parliament and debated. The government made some rather silly points to the effect that it would be constitutionally disastrous for it to reveal the legal advice given by the law officers. As the debate continued it became clear the government was likely to lose. In an act of gross incompetence equalled only by the other acts of incompetence committed by this government every day, Numbers 10 and 12 (Chief Whip’s office) Downing Street decided to instruct Conservative MPs not to vote against the motion. This was despite the fact that the Prime Minister had no intention of complying with the terms of the motion. That extraordinarily stupid decision was made without consulting the Attorney General. The motion was passed.
No sane observer could defend the government’s handling so far. Now, the next stage.
The government published something called a “position statement” written by the Attorney General. That was not the full and final advice he had given to the Prime Minister. There was, inevitably, a lot of fuss. Mrs May sought to get over yet another of her self-made disasters by arranging for the Attorney General to make a statement to the House and answer MPs’ questions. It was obvious to all who saw his performance that he was being entirely frank in disclosing everything which he advised. Sir Keir Starmer, a reasonably competent lawyer turned second rate political hack, decided not to be satisfied. He could see political capital to be made out of the mess the government had got itself into. He tabled another motion asserting that ministers were in contempt of Parliament in refusing to disclose the Attorney General’s full and final advice.
As the intelligent reader (and all my readers are intelligent) will have noticed, everything, by this stage, had become academic. Mr Cox, the Attorney General, had told the House that it was his legal opinion that the Withdrawal Agreement contained a potential trap, that, unless the EU was prepared to allow us to leave the “backstop”, we could never leave it. The question of whether the EU would, one day, take pity on us and allow us to escape was a political, not a legal, one. There was no doubt that the House had been told what the Attorney’s advice had been (and it was advice which was plainly correct).
But Sir Keir Starmer, who appears to have forgotten that he was once a leading member of the Bar with at least a passing commitment to justice, could see a wonderful opportunity to embarrass the government, even though doing so would create a dangerous precedent. The DUP was, some (including me) would say understandably, furious at Mrs May’s willingness to surrender Northern Ireland to the EU in order to get an agreement out of the Commission. She had done the very thing which she had previously said no British Prime Minister could ever do. That meant that the DUP would no longer support the government in the House. Every other minority party was already committed to opposing the government. There was even at least one Tory member (not the brightest spark) who had said he would go along with the contempt motion. Sir Keir knew he could win. He ploughed on.
Now for some more incompetence from the government. Whether the Chief Whip simply couldn’t do his sums and failed to realise that the government was bound to be defeated or whether he did realise, but for some reason thought it didn’t matter, the government decided to battle on. It was determined not to disclose Mr Cox’s advice and it was prepared to risk the first ever finding of contempt against a government. We all began to wonder whether there really was something explosive in the Attorney’s advice (sadly, there wasn’t).
I watched the latter part of the debate and have read the Hansard report of the earlier part. There were, I have to say, a few good speeches. But none came from the opposition benches and, regrettably, many of the Tory speeches were pretty dire. Sir Keir Starmer just took the simple line that the House had passed a motion calling on the government to disclose the advice and it had not done so. That was, he said, a clear contempt. Andrea Leadsom, Leader of the House, was not much better. She made no mention of the doctrine of privilege and of its vital importance in English common law. She just told us that the government couldn’t be compelled to disclose advice from the law officers because the national interest might be endangered. There was a speech from a Labour member (I am sorry but I can’t remember his name) who tackled the obvious problem for the opposition that the House had never before claimed to be able to compel a government to disclose its legal advice. He said there had been a mid-nineteenth century case in which the government had been instructed by the House to disclose law officers’ advice. That high point for the opposition didn’t last long because a Tory member (sorry, forgotten his name as well) produced the books and was able to prove that the House had not ordered the disclosure of the advice; it had been disclosed voluntarily.
I was pleasantly surprised to find my old friend, Dominic Grieve, making a thoroughly sensible speech. Of course, there was a couple of bits of nonsense about Brexit, but his manic commitment to the EU didn’t cloud his assessment of the issues the House was debating. His case, that the endless failure of Parliament to tackle the question of how it should behave when acting as the highest court in the land was very much to be deplored, was a very good one. And other Tory members did get round to mentioning what I believe is called the elephant in the room.
The common law of England has provided us all with many vitally important defences against tyranny. One of them is known as legal professional privilege. Every one of Her Majesty’s subjects, from the most lowly to the highest in the land, is able to seek legal advice in the confident knowledge that that advice can never be required to be disclosed to others. No court would ever order disclosure of privileged advice. Of course, the recipient of the advice can always waive his privilege and publish it. But no one can compel him to do that. From as early as the sixteenth century the courts were asserting that neither lawyer nor client could be guilty of contempt for refusing to disclose privileged advice.
Plainly, the Attorney’s advice to the government was privileged. If Sir Keir Starmer had applied to the High Court for an order that it be disclosed he would have received very short shrift indeed. Even if he had appealed all the way up to the Supreme Court, he would have been met by the same answer: that the government had an absolute right to keep the advice confidential. Why should the House of Commons be able to override the privilege?
Sir Keir’s answer to that question is, I think, that Parliament is the highest court in the land and it can therefore, because there can be no appeal from its decisions, do whatever it wants, even if that involves depriving the Queen’s subjects of rights of which no other court would ever deprive them. That description of Sir Keir’s answer may be quite wrong. My problem is that he appeared, during the debate, never to have heard of legal professional privilege. He simply didn’t mention it. As far as he was concerned, the only questions were whether the House had made an order (passed a motion) and whether the government had complied with it. Concepts of justice or civil rights were, he was convinced, wholly irrelevant.
Sir Keir won his debate, as he was bound to do because the House was never going to behave judicially, rather than politically, in considering the issues before it. He then put on his best I-am-packed-full-of-integrity-and-a-much-better-person-than-anyone-else-in-the-House face and demanded to know from the Speaker what he could now do to enforce his order to the effect that the government had been in contempt of Parliament. The Speaker was happy to go along with this nonsense because he hates the Conservative Party as much as Sir Keir does. So he made a pompous little speech about how important it was to find out what the government was going to do to purge its contempt. The Leader of the House then made the announcement which both Sir Keir and Mr Bercow must have realised would be inevitable: the full and final advice would now be published. Cue another pompous intervention by Starmer and a similar performance by Bercow about when the advice would be published. Poor Ms Leadsom had to sit through that before, again, making an entirely predictable response: the advice would be published the next day.
Others, not surprisingly, have pointed out that, should Labour get into government again (which seems to me to be almost certain if Mrs May is allowed to go on leading the Conservative Party for much longer), it will come to regret its contempt antics. It has created a precedent which may cause it, and the country, very serious problems in the future. But I think it goes further than that. Logic dictates that Sir Keir’s view that the House, in its capacity as the High Court of Parliament, can override ministers’ common law rights whenever it feels like doing so and without explaining why, must go much further. His precedent means that MPs can take it on themselves to order private citizens, or their lawyers, to disclose privileged advice. I know, Sir Keir would say “but we would never do that”. But is that right? It honestly does not seem to me to be beyond the bounds of possibility that some man in the future could be accused of a vile crime which every tabloid denounces as the worst ever committed by anyone and that a particularly populist House of Commons (probably mostly Labour) could then decide to order him and his lawyers to disclose all legal advice given to him.
It really is very important, as Dominic Grieve pointed out, that all this High Court of Parliament stuff should be brought into the modern world as soon as possible. That means that the House itself must provide the cure. Sir Keir Starmer, who has forgotten that justice is actually quite a good thing, should not be consulted by the Privileges Committee when it tries to produce a satisfactory answer.