Questions to the Attorney General

13th December 2018

Attorney General Rt Hon Geoffrey Cox QC MP answers MPs’ questions.

Attorney General

The Attorney General was asked—


Contempt of Court

1. What recent discussions he has had with Cabinet colleagues on the effectiveness of contempt of court proceedings. [908197]

The institution of court proceedings for contempt is by me in relation to each case on its own merits. I institute proceedings when there is sufficient evidence, and when I, as guardian of the public interest, decide that it is in the public interest to do so.

Contempt of court proceedings are very important to ensuring fair trials and the rule of law. Contempt of Parliament proceedings have been crucial in enabling the House to have the information to which it was entitled. Is the Attorney General not ashamed that his Ministers were found to be in contempt?

It is always a serious matter for any Minister to find himself at odds with the House, particularly over an important question of constitutional principle. On reflection, and the opinion of the House having been tested twice, the Government took the decision to disclose the advice, but I must stress to the hon. Lady that successive Governments have defended that principle robustly. I have a list of very eloquent articulations of it by Opposition Members who have defended it against demands for the disclosure of confidential advice. It is an important principle, and I hope that the House will look again at the procedures relating to the motion for a return.

May I perhaps return to the question? [Interruption.] Does my right hon. and learned Friend agree that there is a real need to revisit the standard directions that judges give to juries in relation to the use of social media? Generally judges are well alert to the issue, but, as we know, there have been instances in which convictions have had to be set aside because juries have, in effect, researched the case outside the jury room using social media.

Order. For the avoidance of doubt, the previous exchanges were entirely orderly, and I would have ruled otherwise if they were not. That is the position, which, frankly, the Solicitor General ought to take to heart, and upon which he might usefully reflect. I will be the arbiter of what is orderly, not the hon. and learned Gentleman.

The impact of social media on the integrity and fairness of the trial process is obviously of considerable importance, and we do need to grapple with it. As he knows, we have a call for evidence on social media, and I am currently studying the responses to it.

On the subject of contempt, the Attorney General was meant to disclose the full and final legal advice on the withdrawal agreement. What was actually disclosed was a letter to the Prime Minister dated 13 November exclusively on the legal effect of the protocol on Ireland and Northern Ireland. Is the Attorney General seriously saying he did not advise on the remainder of the withdrawal agreement?

As the hon. Gentleman knows, his party colleague the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) refined and defined the request, which was for the final and full advice that was given to the Cabinet, and that is what he has had.

The letter refers simply to the legal effect of the protocol on Ireland and Northern Ireland, but let me then ask the Attorney General this: the Prime Minister said last night on the steps of Downing Street that she is seeking “legal and political changes” to the withdrawal agreement and the backstop, so as a matter of honour if nothing else, if the Attorney General advises on any changes or additions that the Prime Minister brings back, will he disclose that advice to this House?

As the hon. Gentleman knows, the principle of the convention applies and must be upheld. Of course the Government will consider very carefully, particularly in the light of the House’s expressed wish for assistance on these matters, what assistance they and I as Attorney General can give.



Legal Advice: Public Disclosure

2. When his Department’s policy on public disclosure of legal advice given by Law Officers to the Government was implemented. [908198]

As noted in “Erskine May”, it is a long-standing convention observed by successive Governments that neither the fact nor the substance of Law Officers’ advice is disclosed outside the Government without their authority. That authority is very rarely sought or given.

Given that recent decisions of the House might mean a return to Tony Blair-style sofa Government, does my right hon. and learned Friend think the Humble Address procedure needs revisiting?

Of course, the corrosive effect of the disclosure of confidential advice is that in future Attorneys General will not be able, without risking and fearing its publication, to give frank and robust advice to the Cabinet or the Prime Minister when it is needed, with the point and emphasis that might be needed at that particular time. The risk if it is published is that it is taken out of context, parts of it are seized and plucked and dwelt upon, and the particular moment and context of the advice is ignored. I do think we need to look very carefully at the procedures of the House in this regard while paying due respect to the legitimate desire of the House to have all of the information that it requires.

I think we all understand what the Attorney General’s preferences are in this matter. In response to my hon. Friend the Member for Torfaen (Nick Thomas-Symonds), he said that the advice in his letter to the Prime Minister was full and final. It is credible that it is the final legal advice, but it is not credible that it is the full legal advice. Is that seriously what the Attorney General wants us to believe?

The request of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) was for the final and full advice. As I understand it—I read what he said in Hansardhe requested all the final advice. In other words, he requested that it should not be summarised, and it was not. The House had all the final advice given to the Cabinet.

Will the Attorney General further outline when the legal opinion on changes to the withdrawal agreement sought by the Prime Minister will be released, to clarify any change in his legal advice?

As I have just said, I will of course consider what assistance the House might require. Indeed, I shall listen carefully to the House on any changes that are introduced to the withdrawal agreement and on what the Government should do about publishing legal opinion on it.



Leaving the EU: Human Rights

3. What assessment he has made of the potential effect of the UK leaving the EU on the protection of human rights. [908200]

The United Kingdom has a long tradition of ensuring that rights and liberties are protected domestically, and of fulfilling its international human rights obligations. The decision to leave the European Union does not change this.

I am proud to say that the Scottish Government announced plans this week to introduce a new statutory human rights framework across Scotland. That will help to ensure that Brexit does not lead to an erosion of human rights in Scotland, while enshrining rights already included in the United Nations treaties. Will the Attorney General join me in welcoming this progressive step? Will he also confirm what measures he will be recommending to his own Cabinet colleagues to ensure that human rights are protected in the event of Brexit?

I am always interested to see the measures that are being introduced in the Scottish legal system, because Scotland has a sophisticated and highly effective administration of justice for which I have the greatest respect. Indeed, we can learn a good deal from Scotland in that regard; the same applies to both traditions on both sides of the border. In England and Wales, we are fully committed to the human rights framework of the European convention on human rights, and we have a proud common law tradition of defending those rights. I would expect that common law tradition to continue to evolve, and I would expect that the courts of this country, freed from the European Union, will start to develop their own jurisprudence, making even more effective the protection of those rights. However, I will look at what the hon. Lady has spoken of today with the greatest interest.

In the hurly-burly of the Brexit debate, there are a number of things to be concerned about. However, this country is very much the creator, cherisher and nurturer of human rights, and we have a proud record in that area both domestically and in leading on the international stage. Does my right hon. and learned Friend therefore agree that this is one area of public policy that Brexit should not create any anxiety about?

I quite agree with my hon. Friend. This country was at the forefront of the development of civil liberties and human rights. We have a robust, fiercely independent judiciary, and we have an effective legal profession on which the vindication of those rights often depends. We should be very proud indeed of the tradition that we have inherited.

The Human Rights Act 1998 is one of Labour’s proudest achievements in government, and we will fight to protect the rights and protections that it affords. I noticed that the Attorney General did not mention that in his answer to the hon. Member for Edinburgh North and Leith (Deidre Brock). Will he join us in making a commitment to preserving the Human Rights Act?

It would be unwise for me to think that any Act of Parliament could not benefit from review and subsequent improvement as time goes on, but I can assure the hon. Lady that this Government—and, I am sure, successive Governments—will be wedded to both the rule of law and human rights in this country.



Article 50: European Court of Justice Decision

4. What implications the decision by the European Court of Justice on the revocability of article 50 has for his legal advice to the Government. [908202]

9. What implications the decision by the European Court of Justice on the revocability of article 50 has for his legal advice to the Government. [908207]

The decision of the European Court of Justice clarifies a question of EU law, and it does not in any way change the Government’s policy. The Government’s firm and long-standing policy is that we will not revoke the article 50 notice. The position has not changed and, as is well known, the case will now revert to the Scottish courts for the final decision.

Will the Attorney General take this opportunity to confirm that he advised the Prime Minister that the ECJ’s ruling means that voting against her deal does not automatically mean a no-deal Brexit, and that revoking the article 50 notice and remaining in the EU under current terms and conditions is a third option?

The Government’s policy is that we do not intend to revoke article 50. We intend to leave the European Union on 29 March, and the fact or otherwise of the irrevocability of article 50 is wholly irrelevant to that question. The truth, however, is that the giving of notice under article 50 would not just be an easy matter of pressing a button and the revocation taking effect.

Does the Attorney General believe that legislation would be required to revoke the article 50 notice, or could it be done by a simple vote in this House?

That matter is under review. Let me say clearly that the question of what legal route would be required to trigger the process has not been considered at any length because there is no intention of doing so.

The Government fought this case tooth and nail through the Scottish courts and in Luxembourg. Will the Attorney General tell us why the Government were so desperate to prevent Members of Parliament and the public from knowing that article 50 could be unilaterally revoked and that we could stay in the European Union on the same terms and conditions that we currently enjoy? Will he also answer a question that Cabinet Ministers have so far failed to answer? How much taxpayers’ money was spent trying to keep this House and the public in the dark?

As the hon. and learned Lady knows, the Government’s position throughout was that the case involved a hypothetical question. It does raise an important matter of constitutional principle as to whether courts should be able to be seized of issues under live debate in Parliament, when Parliament does not ask for an opinion, simply in order to inform debate. The Government took the view that the matter was hypothetical—we still do—but the truth of the matter is that the ECJ has ruled and we are where we are.



Surgery Dates

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