PHP0002 - Evidence on Powers of the House of Commons to call for papers

Written evidence submitted by Nick Thomas-Symonds MP

Member of Parliament for Torfaen and Shadow Solicitor-General (PHP 02)

I am writing to provide evidence as invited to by the Committee on behalf of the Her Majesty’s Loyal Opposition, in my capacity as the Shadow Solicitor-General.

Summary

Her Majesty’s Loyal Opposition believe that the long-standing use of powers to obtain papers from the Government, including against their wishes are working as they should be.

The ultimate check and balance is that the publication of papers against the wishes of the Government only occurs after debate and when a majority of Members agrees it is the interests of the nation that this information be published. This system protects sensitive or confidential advice as Members must be persuaded it should be released.

There is also a further check in that the only realistic opportunity to force a ‘humble address’ against the wishes of the Government is for an Opposition party to use one of their allocated opposition days. This is a further significant constitutional check and further ensures it is used appropriately and proportionately.

The Opposition respect the convention that the fact and content of Law Officers’ advice is confidential. Our argument was that the situation was one of exceptional circumstances in which the Law Officers should exercise their discretion to make the advice available. This was the clear will of the House of Commons and the Government did not oppose in full knowledge that the motion was ‘effective’.

Whilst the use of ‘Humble Addresses’ on opposition days has only been recently ‘rediscovered’, it is one of the ancient and historic rights of parliament, set out clearly in Erskine May. We believe that there are no grounds to alter the arrangements, to do so would be a significant constitutional change which would risk dramatically weakening the powers of Parliament, including drastically limit the work of select committees, at the sole benefit of the Executive.

Timeline

I believe that it would be useful to set out the timeline of events and how the Contempt proceedings came about. On the 13 November 2018 (Hansard, Volume 649) my Right Honourable Friend, the Member for Holborn and St Pancras used an Opposition Day Debate to seek a Humble Address.

The debate was wide ranging, with Members from across the House making important contributions about this matter. I, in my role as Shadow Solicitor-General closed the Debate on behalf of the Opposition. In my closing remarks I said:

“The Government have promised the House a meaningful vote. Such a vote requires Members of Parliament to analyse forensically any deal so that they can fully understand the implications of the Government’s position. The Opposition say publish the full advice, so that Parliament can make an informed decision for the future of this country, to secure our economy, our jobs and our future.”

The Solicitor-General brought the Debate to a close and the Speaker put the Motion before the House. The Motion was:

“That an humble Address be presented to Her Majesty, that she will be graciously pleased to give directions that the following papers be laid before Parliament: any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the UK and the European Union.”

The Motion was unanimously accepted by the House. Not one Member from the Government benches stated their disagreement. When Sir Keir Starmer MP raised a ‘Point of Order’ about the effectiveness of this Motion the Speaker stated:

“The House has resolved this matter, in that the motion has been put to it and approved without dissent or objection by it. The right hon. and learned Gentleman is absolutely entitled—both in the course of his speech, as he did, and now via the ruse of a point of order—further and better to explain what he seeks, and there is nothing wrong, exceptionable or disorderly about that.

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. It is then for the Government to respond, and we await that response, which it is to be expected will be swift. I hope that that is helpful to colleagues.”

On the 3 December 2018, the Attorney General made a statement to the House and additionally published a paper called “EU Exit, Legal Position on the Withdrawal Agreement”. It was described by the Attorney General during his statement as a “detailed legal commentary, provided for the purpose of the debate… [which] has been produced with my oversight and approval.”

During my response to the Attorney General I raised the issue that I did not believe that this “legal commentary” was compliant with the Motion which had been passed unanimously by the House of Commons.

It was at the end of the Attorney General’s Statement that I raised a Point of Order with the Speaker, I stated:

“On a point of order, Mr Speaker. I seek your guidance regarding how the House should proceed in pursuing the publication of the advice provided by the Attorney General to the Cabinet. It is clear to Opposition Members, and we believe to the overwhelming majority of the House, that the document provided does not constitute the final and full advice provided by the Attorney General to the Cabinet. More importantly, this does not comply with the motion of the House that you have ruled to be effective. Indeed, I suggest that in the course of his statement, the Attorney General has been quite open about the fact that he is not complying with the motion based on his belief that it is not in the national interest to do so.

My right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), the shadow Brexit Secretary, along with the Scottish National party’s foreign affairs and Europe spokesperson, the Liberal Democrat spokesperson on Brexit, the Deputy Leader of the Democratic Unionist party, the Plaid Cymru spokesperson on Brexit and the leader of the Green party in Parliament, have this afternoon written to you asking whether you would consider giving this House, at the earliest opportunity, the chance to debate and resolve whether this is a matter of contempt. It is clear to me that the Government have taken an unprecedented decision not to comply with the unanimous and binding decision of this House. Instead, they seem to be playing for time, hoping that contempt proceedings take longer than the timetable for the meaningful vote. But we as a House cannot allow that to happen. I therefore ask you to set out how we should proceed to resolve this vital matter.”

Please see attached document which includes the joint letter to the Speaker. The Speaker responded to my Point of Order and said that he would “give it immediate attention when I leave the Chair”. The Speaker made a Statement before the House moved onto the Adjournment Debate, stating “I have considered the matter carefully, and I am satisfied that there is an arguable case that a contempt has been committed. I am therefore giving precedence to a motion to be tabled tonight before the House rises and to be taken as first business tomorrow, Tuesday. It will then be entirely for the House to decide on that motion.”

The next day, the 4 December 2018, Sir Keir Starmer MP moved a motion in his name detailing:

“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.”

There were two questions put to the House, the first in the name of the Leader of the House which referred the Contempt Motion to the Committee of Privileges, the House divided and the vote was defeated 307 (Ayes) to 311 (Noes). The second vote, the Contempt Motion itself, passed 311 (Ayes) to 293 (Noes). This included the Government’s Confidence and Supply Agreement partners, the Democratic Unionist Party. The next day the Attorney General’s legal advice on the Northern Ireland backstop was published.

Background

This inquiry is a direct result of the Government being found in contempt of Parliament after initially refusing to publish legal advice on the Withdrawal Agreement, but the genesis of those events dates to the decisions the Government took after the June 2017 General Election when they were elected as a minority Government.

The Government abandoned the long-held convention of contesting opposition day motions tabled by opposition parties which were not in line with Government policy. In political management terms this avoided the Government contesting and being defeated on politically contentious motions in the House.

As a result of this approach to opposition day motions, Her Majesty’s Opposition explored with the House Clerks what the powers of the House of Commons were and what motions would be ‘effective’ and binding on the Government. It is this that led to the Opposition using an opposition day to table a ‘Humble Address’ to compel the publication of the Brexit Impact Assessments.

The Government did not oppose the ‘Humble Address’ and after a period the Government complied with the terms of the motion and provided the information to the Select Committee as required, fully aware that the penalty for not doing so would be contempt proceedings.

In this session of Parliament eight ‘Humble Addresses’ have been tabled on opposition days, calling for various Government papers or information, with the information requested being directed to be provided to different select committees or directly to all Members of Parliament. On five occasions the Government have not opposed the ‘Humble Address’ and on the three occasions that they did, on 2 May 2018 on “Windrush”, 23 May 2018 on NHS Outsourcing and 17 October 2018 on Universal Credit the Government negatived the motion.

The Government can hardly claim that they were caught unawares when the House considered a ‘Humble Address’ tabled for debate on 13 November 2018 seeking to compel the publication of full and final legal advice from the Attorney General to the Cabinet on the Withdrawal Agreement and Political Declaration to MPs. The Government choose not to oppose the ‘Humble Address’.

After the Government confirmed that it had no intention to comply with the ‘Humble Address’, Mr Speaker granted my honourable friend, the Member for Holborn and St. Pancras, a debate on a motion to find Ministers in contempt of Parliament on 4 December 2018. The Government lost on both their amendment and the main question, being found in contempt of Parliament with both Conservative MPs and the Government’s Confidence and Supply Partners, DUP MPs voting against the Government.

It is worth highlighting the wording of the Government’s amendment which was defeated, where MPs voted against requesting that the Committee of Privileges “consider the constitutional and historic context and the proper use, ambit and scope of the motion for return procedure.”

The Committee have asked for submissions on a number of areas, I will now address these in turn.

The nature and extent of the House’s power to require the production of papers

This is an ancient and historic right of Parliament; it is one of the fundamental powers that the House of Commons and its Committees has. To alter this in any way risks infringing upon the rights of Parliament and give power to the Executive.

The right to demand and receive papers is a key mechanism by which both Houses hold the Government to account.

As Erskine May sets out:

“Each House has the power to call for the production of papers by means of a motion for a return. A return from the Privy Council or from departments headed by a Secretary of State is called for by means of an humble Address to the Sovereign; a return from elsewhere, such as a department not headed by a Secretary of State, is sought directly by means of an order of the House.

“The power to call for papers was frequently exercised until about the middle of the nineteenth century. It is rarely resorted to in modern circumstances since much of the information previously sought in this way is now produced in Command Papers or in Act Papers, or in response to questions. However, the power has a continuing importance since it is regularly delegated to select committees, thus enabling them to send for papers and records (see pp. 818–819).

There is no argument that I can see to alter or curtail in any way this fundamental right. To do so would fundamentally weaken both Houses of Parliament’s ability to scrutinise and hold Government’s to account. Any proposal would be at the determent of our parliamentary democracy and at the advantage of the Executive. It would be a major constitutional change with far reaching consequences for the Select Committee system that has developed in Parliament.

Whether those powers are subject to any limitation

We are not convinced of any changes to these powers, as I stated above, to do so would fundamentally weaken both Houses of Parliament’s ability to scrutinise and hold Governments to account. Fundamentally, the major limitation on the use of these powers in cases where a ‘humble address’ is before the whole House is for Members to oppose the release of the documents being demanded in the motion.

In the specific case of the legal advice, the Government making the assessment that they could not win a majority given the views of their own MPs and their Confidence and Supply Partners, decided not to oppose the motion in full knowledge of the ramifications for not doing so. When the Government opposed the contempt of parliament proceedings, they tabled an amendment that stated the terms of the ‘humble address’ had been complied with and to refer the use of such motions to the Committee of Privileges. This was defeated.

Therefore the House voted to find the Government in contempt knowing that the likely effect would be to force publication of the legal advice. MPs themselves: the requirement for a majority to pass a contested vote on a ‘humble address’ is the ultimate check on the use of this power.

In regard to how these powers are exercised by select committees, Erskine May already sets out clear guidelines and there has been no persuasive argument that we are aware of to alter these.

“In the case of a select committee with power to send for papers and records there is no restriction on its power to require the production of papers by private bodies or individuals, provided that such papers are relevant to the committee’s work as defined by its order of reference” (see pp 818–819).

The procedure whereby such powers are exercised, in cases where motions are unopposed, or opposed by the Government

In the case of the use of this power through a ‘humble address’ on the floor of the House, this has become well understood amongst Members.

The issue is not whether the Government oppose a ‘humble address’ or not, both motions if successful are considered ‘effective’.

We would hope that the Government has learned that the failure not to comply is to result in being found in contempt of Parliament. It is this unedifying position that the Government found themselves in and that we would hope would not reoccur.

Nevertheless, the contempt of parliament procedure succeeded in bringing the matter of failure to comply with the ‘humble address’ to a swift conclusion and led to publication of legal advice.

Her Majesty’s Loyal Opposition do not believe there are grounds for any changes to the House’s practices and procedures in this respect.

The implications for the House and the Government of the House’s recent decision to use and enforce its powers to require the production of legal advice to Government from the Attorney General

In the initial debate on the Humble Address on 13 November, the specific request from the Opposition front bench was that the full legal advice provided by the Attorney-General to the Cabinet on any completed Withdrawal Agreement should be made available to MPs in good time for the vote on the deal.

As I stated in the House, the Opposition respect the convention that Law Officers’ advice is confidential. Our argument, was that the situation was one of exceptional circumstances in which the Law Officers should exercise their discretion to make the advice available. Furthermore given MPs were being asked to vote on what the Prime Minister said was the ‘only and best deal’ on offer from the European Union, our argument was that it would not be detrimental to the UK’s national interest or negotiating position to publish the full and final legal advice on a deal that MPs were being asked to vote on.

It is worth noting that the Prime Minister when in opposition, along with the Conservative Party demanded the publication of legal advice on going to war in Iraq. A ‘humble address’ was not used to attempt to seek its publication but a Plaid Cymru opposition day motion was. It was defeated by the Government.

I have read the oral evidence provided by Lord Morris of Aberavon. He raises a number of interesting points and his wealth of knowledge with regard to the workings of the Law Officers is invaluable.

I would respectfully like to take issue with the idea that Law Officers would censure the breadth and quality of their written advice for fear of future publication. First, I do not know of any example of a Law Officer who would not provide full and complete written advice as requested by the Government. Secondly, I reiterate that to be in the position that it was published against the will of the Government, a Government would need to lose a vote in the House of Commons – the circumstances were Law Officers legal advice should be published are exceptional. This, I believe, was one of them.

He also raised points about seeking alternative means of publication of the legal advice. In the course of that debate on 13 November 2018, the Government offered to publish a summary of the advice and for the Attorney-General to make a statement to the House, but this fell short of what was being asked for and it was clear this was unacceptable to a majority in the House as the Government could not, even with those concessions, muster a majority against the Humble Address.

In the weeks that followed, the Government made no efforts to seek compromise. One option would have been to make the Advice available on Privy Council terms: such an offer was not made. Another option would have been to have involved the Chair of the Brexit Select Committee in redacting parts of the Advice (indeed, this had been the procedure with the Brexit impact assessments when some had been held back on national security grounds). But they did not even approach us with suggestions.

When I responded to the Attorney-General’s statement on 3 December, the Government was no further forward and just stuck to its line on disclosing the summary and the giving of the statement.

The previous weekend had seen selective leaking of aspects of the Attorney-General’s advice to the press. This seemed to me to be an intolerable situation, as I pointed out in the House:

“I am of course grateful to the Attorney General for his statement, and for advance sight of it, but all Members who are asking questions are at a major disadvantage, because they have not read the legal advice on which the statement is based. That is totally unacceptable when aspects of the Attorney General’s advice have been selectively leaked to the press over the weekend. For example, it has been reported that in a letter to Cabinet Ministers last month, the Attorney General said, in respect of the backstop arrangement,

“The protocol would endure indefinitely”

if trade talks broke down.”

Thus, when the Government was found in contempt of the House on 4 December, the motion was being pushed by the Opposition front bench in a situation where the Government had offered no compromise since 13 November, and where aspects of the Advice were being disclosed to the press in any event.

I also think it is worth highlighting that subsequent to the full and final legal advice being published, no information that was detrimental to the UK’s national interest was contained within it.

As an aside, it is also worth drawing the Committee’s attention to the fact that the very existence of the legal advice was revealed through a leak to the press from Cabinet.

Whether it is desirable to establish a protocol for the handling of papers required by the House which are of a sensitive or confidential character.

Committees and the House have well established for dealing with handling of sensitive or confidential papers, with strict penalties for individuals who misuse this privilege.

It is worth noting and putting on record that the House dealt with the access to the Brexit sectoral analyses in a professional way which balanced confidentiality and access to Members. They were eventually published by the committee at a later date.

The lesson we would take from the attempted use of ‘humble addresses’ is that where the Government has argued that release of some, or all information in a particular area would be detrimental to the national interest, then steps have been taken to reach a compromise and maintain the balance between access to information and protecting the national interest.

Any protocol may have the unintended consequence of inhibiting a system which has responded well to the various specific circumstances which have occurred so far.