Legal Advice: Prorogation

(Urgent Question): To ask the Attorney General if he will make a statement about his legal opinion on the advice given to Her Majesty the Queen to prorogue Parliament.

As the hon. and learned Lady knows, the Supreme Court gave judgment on this issue yesterday, and that judgment sets out the definitive and final legal position on the advice given to Her Majesty on the Prorogation of Parliament. The Government’s legal view during the case was set out and argued fully before the Supreme Court. The hearing was streamed live and the Government’s written case was, and is, available on the Supreme Court website.

I took a close interest in the case—[Interruption]—and I oversaw the Government’s team of counsel. I have to say that if every time I lost a case I was called upon to resign, I would probably never have had a practice.

The Government accept the judgment and accept that they lost the case. At all times, the Government acted in good faith and in the belief that their approach was both lawful and constitutional. These are complex matters, on which senior and distinguished lawyers will disagree. The divisional court, led by the Lord Chief Justice, as well as Lord Doherty in the outer house of Scotland, agreed with the Government’s position, but we were disappointed that, in the end, the Supreme Court took a different view. Of course, we respect its judgment.

Given the Supreme Court’s judgment, in legal terms the matter is settled, and, as the hon. and learned Lady will know, I am bound by the long-standing convention that the views of the Law Officers are not disclosed outside the Government without their consent. However, I will consider over the coming days whether the public interest might require a greater disclosure of the advice given to the Government on the subject. I am unable to give an undertaking or a promise to the hon. and learned Lady at this point, but the matter is under consideration.

I too took a close interest in the case. Let me start by assuring the Attorney General that I am not going to call for his resignation—yet.

Yesterday was a very special day for Scots law and the Scottish legal tradition going back to the declaration of Arbroath that the Government are not above the law. Following in the footsteps of Scotland’s Supreme Court, the UK Supreme Court asserted the rule of law and the separation of powers, and it restored democracy. It is worth emphasising that the decision was unanimous, as was that of Scotland’s Supreme Court, chaired by Scotland’s most senior judge, the Lord President of the Court of Session. Both Courts unanimously found that the decision to advise Her Majesty to prorogue Parliament was unlawful, void and of no effect. However, the question I am interested in is how it came to pass that that was ever allowed to happen.

Redacted documents lodged with the Scottish Court confirmed the suspicion that this was a plan cooked up in No. 10 by the Prime Minister and his special advisers. I want to ask about documents that mysteriously found their way into the public domain yesterday afternoon, when an unredacted version of one of those lodged with the Scottish Court found its way to Sky News and revealed that the Attorney General had said that the advice to prorogue was lawful and that anyone who said otherwise was doing so for political reasons. Knowing the Attorney General, I am sure that his advice was considerably more detailed and nuanced than the three sentences that appear in the unredacted document. Can he tell us whether a legal opinion was made available to the Prime Minister or the Cabinet?

The right hon. Member for Hastings and Rye (Amber Rudd) has said that when she was in the Cabinet, Cabinet Ministers requested to see the advice but it was not handed over. Is that correct? Can the Attorney General tell us what was given to the Prime Minister, if not to the Cabinet? Many of us believe that the Attorney General is being offered up as a fall guy for the Prime Minister’s botched plans. Does he therefore agree that releasing the advice in its entirety will help him avoid being the scapegoat for a plan dreamed up by the Prime Minister and his advisers? Will he give the undertaking, which he hinted he might give, today?

I am extremely grateful to the hon. and learned Lady for her kindness and solicitousness for my welfare. I am particularly attracted by the tempting prospect that she dangles before me, but she will know that I am obliged by the convention to say that I am not permitted to disclose the advice that I may or may not have given to the Government. But I repeat: the matter is under consideration.

Does my right hon. and learned Friend agree that if, in the future, we were unfortunate enough to have a Corbynista Labour Government—[Interruption.] That is obviously not thought to be a very likely prospect, but if that misfortune were to occur, if that Government were to decide to suspend the House for a long period because there was a parliamentary majority against their principal policy, and if that Government also decided that constitutional law was not challenged by that, and challenged the right of the courts to overrule it, the Conservative party would be likely to get very excited. Can my right hon. and learned Friend reassure me that this Supreme Court judgment has settled that matter finally, that this kind of action can never be taken by any future Government and that parliamentary sovereignty therefore remains intact?

I certainly can say to my right hon. and learned Friend that it is important when we reflect on judgments that may be seen to go against the short-term interests of any particular Government that we remember that they stand as precedents and principles for the future. I invite all my hon. Friends to reflect on precisely the situation that my right hon. and learned Friend has set out before the House, which is that this would stand for Governments of a colour of which those on my side would not approve and for their actions too. It is important that when we comment on the decisions of judges we remember that those judges are both impartial and independent, and they are entitled to reach the view that they have reached. We are fortunate in this House to have one of the finest judiciaries, I believe, in the world, and it is important to remember that the principles they set apply to both sides, as my right hon. and learned Friend has said.

I congratulate the hon. and learned Member for Edinburgh South West (Joanna Cherry) on securing the urgent question and for her work on this matter. Yesterday’s decision of the Supreme Court—I give credit to all those who brought the cases—was the most damning judicial indictment of a Government in modern times: that the decision to advise Her Majesty the Queen to prorogue Parliament was unlawful.

This Government stand in shame, tendering illegal advice to our monarch and not even able to uphold that most basic and important of principles: abiding by the rule of law. What we know from yesterday’s leaked document is that the Attorney General said that his advice on the question of the law was that this was

“lawful and within the constitution”,

and that any accusations of unlawfulness were “motivated by political considerations”. If that is in any way accurate as to his full advice, he was wrong on both counts. His “close interest” simply was not enough.

I will ask the Attorney General a number of questions. Can he confirm why the Government gave no witness statement to the Court? Indeed, the Court was left in a position where it said:

“No justification for taking action with such an extreme effect has been put before the court”.

Why not? The Attorney General talks about respecting the decision of the judges, but the Chancellor of the Duchy of Lancaster was on the radio this morning saying that he disagrees with the decision. He should tell us which parts of the judgment the Government disagree with. May I give the Attorney General a simple piece of advice for his considerations about the publication of this advice over the next few days—a simple suggestion? Just publish it and make it open to Parliament and the public.

On this Attorney General’s watch, the Government have been found in contempt of Parliament. Now they have been found in contempt of the law. Does he not accept that he does not have a shred of credibility left?

I do not know whether in the hon. Gentleman’s practice at the Bar he felt that just because he had given advice that might not have been upheld by a court he had no credibility. That is an absurd and ridiculous proposition. Furthermore, it was advice that was agreed with by the first instance court in Scotland and by the Lord Chief Justice of England. Is the hon. Gentleman calling for his resignation as well? Is he calling for the resignation of the Master of the Rolls? Is he calling for the resignation of the President of the Queen’s bench division? Is he calling for the resignation of Lord Doherty? [Interruption.]

Order. If the Attorney General could resume his seat momentarily, I should be deeply obliged to him. The Attorney General has a distinctive and resonant baritone, which is well known throughout the House, but it is a challenge even for him to be fully heard if there is constant catcalling. There will be ample opportunity for colleagues to question and probe the Attorney General—of that they may be assured—but I wish myself to listen to his mellifluous tones.

I will say one thing for the Scottish National party and the hon. and learned Member for Edinburgh South West (Joanna Cherry) if I may. Whereas in the hon. Gentleman’s case, no shameless piece of cynical opportunism is left on the floor, the hon. and learned Lady is a lawyer and a Queen’s counsel, and she knows that it is the most puerile and infantile of criticisms to say about a lawyer whose advice has been upheld by courts right the way up to the Supreme Court that somehow or other he should be held culpable for that advice. The fact of the matter is that this advice was sound advice at the time. The court of last resort ultimately disagreed with it, but in doing so it made new law, as it was entirely entitled to do.

I am extremely mindful of the difficult task that my right hon. and learned Friend has as Attorney General in providing advice to Government, and I am sorry if his legal advice has been partially leaked, because he is entitled to give advice in private. Without that, he cannot do his work. I would also say that for him to get the law wrong in an area of difficulty is not necessarily something to be held to his discredit, but he may agree with me that one of the issues in this matter was one of not just law but propriety, and the propriety went to the unconstitutional or constitutional nature of the act of Prorogation itself, in view of the motivation of the Government for doing it. In those circumstances, I was struck by the fact that in the leaked document his opinion is referred to as believing it is constitutional, when I had understood from comments he made as far back, I think, as July, when Prorogation was first being mooted in order to achieve a no-deal Brexit on 31 October, that he considered that such an act would be unconstitutional. I wonder therefore whether this is not one issue that he ought to clarify.

I know that my right hon. and learned Friend will understand that it is not right for the Attorney General or any Cabinet Minister to comment on leaks of matters that occurred within Cabinet, be they accurate or inaccurate—it would set a wholly undesirable precedent—but let me say this. It was being mooted some weeks ago that Parliament might be prorogued from the beginning of September or even earlier until 31 October. I say straightaway to him that if that had been the proposition, I could not have stayed in the Cabinet while it was done.

Does the Attorney General believe that yesterday’s judgment of the Supreme Court represented a constitutional coup, and if he does not share that view, could he explain why he thinks it is wrong?

I do not think that it was a constitutional coup. I know the right hon. Gentleman will know that I do not, and I do not believe that anybody does. These things can be said in the heat of rhetorical and poetical licence, but this was a judgment of the Supreme Court of a kind that was clear and definitive. It often happens that Governments lose cases. We did not agree with it, because of course we argued against it, but we accept the ruling of the Supreme Court, and we are proud that we have a country that is capable of giving independent judgments of this kind.

I welcome the Attorney General’s very clear statement of the importance that he and, I am sure, the whole Government attach to the impartiality and independence of the judiciary. Let me also say to him that many lawyers might well have given exactly the same advice as he did on the weight of precedent. Does he accept, however, that it is most important that the convention that the advice that the Attorney General gives to Government is not leaked and is not disclosed should not be lightly set aside? Would he also perhaps think it rather regrettable that such an important matter, which warrants very careful and calm and considered language and discussion, should be used for the purpose of rather unworthy ad hominem attacks and party political knockabout when so much is at stake?

I am grateful for my hon. Friend’s question. I do of course agree with him that legal advice, and particularly the role of the Attorney General, is always difficult, because one polices and intersects a very difficult line between giving advice of an impartial, and politically impartial, character, and being a political Minister, but I hope that I have endeavoured to do that with all the conscience and candour at my disposal—and when I say to the House, as I do today, “I accept that we lost; we got it wrong on the judgment of the Supreme Court; but it was a respectable view on the law to take, and that view was taken by four of the seven judges who had opined up to the point of the Supreme Court.”

The Supreme Court has made new law. Let us be absolutely clear: from now on, the prerogative power of Her Majesty, advised by the Prime Minister, can be the subject—the justiciable subject—of the court’s control, and that was a judgment that the Supreme Court was perfectly entitled to make. What the implications are for the future of our constitutional arrangements will have to be reflected upon in the coming months and years, but it is never wise to reflect upon a court case and its implications in the immediate aftermath of that case. It will have to be done carefully and deliberately, and this House will have to decide, ultimately, whether these matters and these powers are for this House to regulate and control, or whether they are for the judiciary; but, at the moment, the Supreme Court has spoken, and that is the law.

The Attorney General’s acceptance at that point that the Government got it wrong in this case is very welcome. Will he now advise the Prime Minister and the Government to accept and agree with the content of the Supreme Court’s judgment—not just the obligation to abide by its conclusion—and, in particular, to accept that it is wrong for this Government, or any Government, to seek to prorogue Parliament for five weeks, rather than just for a few days, without giving any reason, let alone, in the words of the Supreme Court, a good reason, to the public, to Parliament, or to the courts?