Prorogation (Disclosure of Communications)

We now come to the motion in the name of Mr Dominic Grieve and others, to be moved under Standing Order No. 24. I remind the House that a paper with the terms of the motion has been distributed.

I beg to move,

That this House has considered the matter of prorogation with the imminence of an exit from the European Union and accordingly resolves—

That an Humble Address be presented to Her Majesty, that she will be graciously pleased to direct Ministers to lay before this House, not later than 11.00pm Wednesday 11 September, all correspondence and other communications (whether formal or informal, in both written and electronic form, including but not limited to messaging services including WhatsApp, Telegram, Signal, Facebook messenger, private email accounts both encrypted and unencrypted, text messaging and iMessage and the use of both official and personal mobile phones) to, from or within the present administration, since 23 July 2019 relating to the prorogation of Parliament sent or received by one or more of the following individuals: Hugh Bennett, Simon Burton, Dominic Cummings, Nikki da Costa, Tom Irven, Sir Roy Stone, Christopher James, Lee Cain or Beatrice Timpson; and that Ministers be further directed to lay before this House no later than 11.00pm Wednesday 11 September all the documents prepared within Her Majesty's Government since 23 July 2019 relating to operation Yellowhammer and submitted to the Cabinet or a Cabinet Committee.

I am sorry to have to move this motion, because it ought not to be necessary to do so.

When I was Attorney General, a lot of the work I had to do involved advising on law, but from time to time quite a lot of it was to do with propriety in government. We are very blessed in this country that, as well as obeying the rule of law, there is within government a deep understanding that if our constitution, which is largely unwritten, is to function, there has to be a high level of trust between different parts of government—whether it be Parliament or the Administration—in how our affairs are conducted. I am glad to say that, in my experience, if and when I ever had to step in as Attorney General to point out that I thought propriety might be in danger of being infringed, I always had a positive response from my colleagues in government about the necessity at all times to be seen to be acting with clean hands.

On that point, if the right hon. and learned Gentleman is successful and the Government are obliged to supply these papers, is he confident that the current Prime Minister and the Executive will do so?

Seeing that this would be a Humble Address to Her Majesty the Queen for the documents, I very much hope that there could be no question other than that they will be provided, because it is the custom and practice and the convention that such Humble Addresses are responded to positively by the Government.

The reason why we have these rules is to manage difference. They provide a framework for our debates that—because, as I say, there is a high level of trust— enables us to manage sometimes serious difference, such as we undoubtedly have at the moment, in a moderate fashion. We are able sometimes to say strong words to each other, but to come together afterwards with a high level of appreciation of the other’s point of view and an absolute certainty that one side is not trying to trick the other. My concern is that there is now increasing and compelling evidence that this trust is breaking down and, indeed, that there is cause to be concerned that the conventions are not being maintained.

This of course arises particularly because of the decision to prorogue this House. I do not think I need to go into too much history to point out that, in recent years, the power of Prorogation has been used for only two reasons. The first is to have the short interval, usually of no more than seven or eight days, between one Session and the next, so that a Queen’s Speech may take place. It has also been used at times to extend time for a general election in order to maintain a power by which this House could be recalled in an emergency before it is finally dissolved. The use being made of it by the Government in proroguing this House until 14 October is, in current times, unprecedented. It is a long period, and all the more startling because it takes place against the background of what is without doubt—it is a bit difficult to gainsay it—a growing national crisis.

Does my right hon. and learned Friend agree that what makes this particularly important is that it was open to the Government to move a periodic Adjournment—or, as we normally call it, a sittings motion—which could have been approved by the House to achieve the same effect? However, the Government chose to use the prerogative power, which in effect enables the Prime Minister to advise the Queen to remove Parliament from the scene of action. It is therefore obviously of the greatest possible importance what the Government’s motive in so doing was, and the papers he describes will reveal that motive in a way nothing else can.

My right hon. Friend is right on both points, and I shall move on in a moment to develop in a bit more detail the issue of the documents.

Will the right hon. and learned Gentleman give way?

I will if the hon. Lady will wait just one moment.

The justification that the Government have given for this length of Prorogation is that we were due to adjourn for the purposes of party conferences and to return shortly before the date the Government have chosen, but everybody in this House knows that the nature of the crisis that has been engulfing us in the last two months meant that it was clear the House would not consent to be adjourned because it regarded its continuing sitting as being absolutely essential. My right hon. Friend the Prime Minister knew this very well. Furthermore, it appeared—certainly at the time when he stood for the leadership of the Conservative party and was about to become Prime Minister—that although suggestions had been made about proroguing the House to facilitate achieving a no-deal Brexit, he apparently did not approve of them. Indeed, he said publicly during his leadership bid:

“I’m not attracted to archaic devices like proroguing.”

That is where the trust comes in. As news emerged of the decision to prorogue, it rapidly became clear that the Government did not appear to be giving a consistent account of their reasons. As the act of proroguing has led to litigation, it has then followed that some, but not all, of the motives for Prorogation began to emerge. We have seen that although on 23 August this year No. 10 Downing Street and the Prime Minister denied considering the idea of proroguing at all, in fact, internal Government documents reveal that this matter was under consideration some 10 days before. Indeed, there is a rather remarkable memorandum from the Prime Minister himself in which he expresses total contentment with this because he finds the September sitting to be an unnecessary and rather contemptible activity. It is perhaps rather typical of my right hon. Friend the Prime Minister that he gets something wrong—as we now know, he suggests that the September sitting is the product of the work of one of his predecessors, Mr David Cameron, whereas it was Mr Tony Blair who introduced it. It is rather noteworthy that when we found what was under the redaction, it turned out he had condemned Mr David Cameron, for his belief in having a September sitting, as a “girly swot”, which I supposed was meant to be contrasted with his manly idleness. That seems to be his established practice when it comes to confronting the crisis that threatens to engulf us on 31 October if he cannot get the deal that he promises he is going to achieve, but which it now appears from the resignation statement of the previous Secretary of State for Work and Pensions that he has done absolutely no work even to commence negotiating.

I thank the right hon. and learned Gentleman for giving way to this girly swot. Does he agree that democracy requires a certain commitment to the truth; that to date there has been a reasonable expectation that when asked questions the Government will not actively lie and will tell the truth; and that the loosening of the current Administration’s moorings from a commitment to tell the truth is a direct threat to democracy?

The hon. Lady is right. That is what concerns me so much, and I think the House collectively ought to pause and consider it this evening. She will be aware that the next thing that emerged—I shall come back to the issue of it being just rumour—in the litigation that was brought against the Government was a desire to set out the reasons why Prorogation was being pursued. When the Treasury Solicitor’s Department, as it would properly do in conducting litigation, sought to find a public official willing to depose in affidavit as to why the Government had decided to prorogue—and I might add, asked Her Majesty the Queen to prorogue Parliament, one must assume—no such official willing to swear the affidavit could be found. As a consequence, a number of documents were simply exhibited by the Treasury Solicitor for the Government’s case.

Does the right hon. and learned Gentleman recall any instance, when he was Attorney General, of being unable to find public officials willing to swear affidavits about the Government’s case?

No, I can think of no such event. Indeed, it is the Treasury Solicitor’s Department and the Law Officers’ job to make sure that anything the Government say in litigation fulfils their duty of candour and is not misleading.

Then a most remarkable thing happened, Mr Speaker, and this is where it becomes more difficult for me. In the course of the days that followed I started to be given information from public officials informing me that they believed the handling of this matter smacked of scandal—there is no other way to describe it. Of course, that places me in a difficulty, because it is simply the information that I have been given. I want to make absolutely clear that I am not in a position—any more, I think, than any Member of this House—to be able to ascertain whether that information is mistaken. I can only say that I believe those sources to be reliable. Also, in my experience it is extraordinarily unusual that I should get such approaches, with individuals expressing their disquiet about the handling of a matter and some of the underlying issues to which it could give rise.

It is as a consequence of that that I have drafted, along with right hon. and hon. Friends and other Members, the Humble Address concerning the Prorogation documents. I want to emphasise at the outset that in doing so and identifying named individuals, whether they be special advisers, who make up the vast majority, or one in case a civil servant, I am making absolutely no imputation against any single one of them whatever. It would be disgraceful to do so, because I do not have the evidence on which to do it.

My right hon. and learned Friend and I have worked together, originally as master and pupil and then as Attorney General and civil servant. We have a great deal of history in this matter. Does he agree that there are civil service mechanisms and systems for guiding the behaviour of civil servants, and that these matters are ideally best not discussed in the manner in which we are discussing them this afternoon?

My hon. Friend is right about our long association. She is also right, of course, having worked in the Treasury Solicitor’s Department, where I am quite sure she maintained at all times the highest standards of integrity. The difficulty, however, is this: 31 October is looming. We are, as a House, about to be prorogued and rendered entirely ineffective until 14 October. This is the choice of the Government. The routes I might have wished to have taken to see this matter properly investigated simply do not match the time available for us to take them. As trust has progressively broken down, I am afraid I have become increasingly concerned that if one were simply to ask polite questions, the Government may not respond in the manner they should.

Will the right hon. and learned Gentleman tell the House whether he intends to put on the record any of the details of the information he says he received? The worry is that if he does not and the Government simply ignore his Humble Address, we will never know its contents. The implication of what he is saying is really very serious—that the Queen was misled by the Prime Minister as to his reasons for wanting a Prorogation.