Brexit legal advice analysis: Are Tory ministers acting in contempt of Parliament?

Co-Director of PRIME Economics and barrister Jeremy Smith writes on the accusation that ministers are holding Parliament in contempt for refusing to publish the full Brexit legal advice – is the Attorney’s General client the Government, or is it the public?

Today (I write on Monday evening) Speaker Bercow  has agreed to accept a motion from Labour, the Democratic Unionist party and other opposition parties, to debate a motion charging the government with contempt of Parliament, prior to the upcoming 5 days’ debate on the Prime Minister’s Brexit deal.  This potentially generates yet another mini constitutional crisis, between government and Parliament.

The House of Commons had passed a motion on 13 November requiring the government to publish in full the legal advice on the Withdrawal Agreement provided to it by the Attorney-General, Geoffrey Cox, a Brexiteer barrister of colourful legal and Parliamentary career, whose summary on Wikipedia merits a quick visit by those not easily offended.  This motion had passed with the abstention of Conservative MPs, given the government Whips’ fear that they would be defeated with the DUP ‘defecting’.  This may be seen, with hindsight, as an error of judgment.

The traditional view of the role of the Attorney-General as legal adviser to government is that his or her advice is covered by lawyer-client privilege, which means that government may keep it confidential, and Parliament generally cannot require it to be published.  The client (but not the lawyer) may waive this privilege.

In other contexts, the British courts have given a broad remit to legal privilege – it includes, said the House of Lords in Three Rivers District Council and others (Respondents) v. Governor and Company of the Bank of England (Appellants) (2004) advice on how the client might best present their evidence, as well as strictly advising on the legal issues concerned.

So assuming that Geoffrey Cox, as Attorney-General, was discussing with Cabinet colleagues the presentation of the government’s Brexit “case” to Parliament and the public, as well as advising on any purely legal implications, was this covered by legal privilege?

I see that former Labour Lord Chancellor Charlie Falconer is tweeting that the Attorney-General should indeed yield to the House of Commons:

Well, there may be grounds for distinguishing this case from others – such as then Attorney-General Peter Goldsmith’s (changing) advices on the legal basis of the Iraq War – in which governments of different political persuasions have insisted on legal privilege.  In 2007, the Labour government published a consultation paper on the roles of the Attorney-General,

“1.37 On questions relating to the legal advice the Attorney General has given to Government, accountability is subject to considerations of confidentiality and legal professional privilege. However, the Attorney General is sometimes called upon to advise Parliament itself, particularly on questions of Parliamentary privilege, the conduct and discipline of Members, and the meaning and effect of proposed legislation.”

And again,

2.9 Furthermore, it is argued, the Attorney General’s advice, as well as needing of course to be honest and authoritative, is advice to a particular client (the Government) on how its policies may lawfully be achieved, including advice on the legal risks attached, the prospects of successful challenge and so on. It is, like other legal advice, subject to legal professional privilege and is not generally published. In this way, the Attorney General operates like an in-house lawyer…

2.10 However, some commentators have suggested that the Attorney General’s advice to Government should not (or not always) be treated in the same way as legal advice given to a private organisation. The Government is not a business and the relationship of the Attorney General to the Government is arguably of a different order to that of other in-house lawyers. This raises the question of whether, at least for some purposes, “the public” (or Parliament), rather than the Government, should be treated as the Attorney General’s client. Lord Bingham has said:

“There seems to me to be room to question whether the ordinary rules of client privilege, appropriate enough in other circumstances, should apply to a law officer’s opinion on the lawfulness of war; it is not unrealistic in my view to regard the public, those who are to fight and perhaps die, rather than the government, as the client.”

Well, Brexit is not quite war, but like war, it shapes the country’s future in more profound economic and constitutional ways than other lesser events.

So where does this lead us and leave us?

In general principle, the government appears to me to have a strong case, from precedent, that legal advice and explanation, including on presentational issues to Parliament, is covered by legal privilege and that the House of Commons cannot override this.

However, since the government did not ask its MPs to vote against the motion requiring the full advice to be given to the Commons, there is clearly an argument that the privilege has been waived.  Since the privilege is that of the “client” (the government) and not of Mr Cox as legal adviser, I would be surprised if he himself were to be found guilty of contempt.

Moreover, the facts of the withdrawal Agreement ‘case’ do offer an opportunity for Parliament to force the issue and win a broader right of access to legal advice than hitherto.  For example, there could be a new distinction drawn between legitimate legal advice on a matter of pending litigation by or against the government, where legal privilege would still apply – and legal advice on matters of general national interest where no immediate specific legal proceedings are involved.  Thus, general legal advice on war, or trade agreements or other international conventions (including the tactics for presentation to Parliament or public) would be disclosable to Parliament as well as government, unless government could adduce a specific overriding reason why there was a need to withhold.

Another thought – the government claims that Parliament already has the essence of the full “legal advice” before it.  But as David Allen Green, the Financial Times’s legal eagle has pointed out (once more, of course, via twitter!), the 43 page document put before Parliament does not even claim to be legal advice in any shape or form.  He imagines the discussion:

In fact, it’s simply entitled “EU EXIT:  Legal position on the Withdrawal Agreement.”  It’s not a ‘summary’ of legal advice, nor does it show sign of any meaningful communication between lawyer and client.  Maybe this opens up another front – that the Attorney General was not giving legal advice to government, and that no legal privilege can attach to a general political discussion on a generalised “position” that is no more than a jobbing summary of a long document.

The House of Commons of course can vote (if the majority is there) to find ministers in contempt, even if this stretches precedent.  We can sense a government rapidly losing its life-force.  In Parliamentary constitutional terms, it’s a potentially revolutionary situation.  We can even imagine the courts being handed this hottest of potatoes to adjudicate on – a dispute over privileges between Executive and House of Commons. But surely, in our common interest, it’s time for Parliament to take control.

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