How did the Government end up in contempt of Parliament?

This post first appeared on the blog of the Political Studies Association Parliaments Group on 10 December 2018.

The Government has found itself in the unprecedented position of being in contempt of Parliament. The immediate cause of the contempt motion was the government’s failure to release in full the Attorney-General’s legal advice on the EU withdrawal agreement. The Government had been instructed to release the advice in an Opposition motion which was approved by Parliament on 13th November. The Government’s refusal to do so, coupled with its attempt to circumvent Parliament’s instruction by sending the Attorney-General to the House to explain his advice, prompted Labour to table a contempt motion which, on 4th December, was passed by 311 votes to 293.

The roots of the Government’s parliamentary difficulties in relation to the Attorney-General’s advice do not, however, lie in its handling of the EU withdrawal agreement, so much as its response to an Opposition Day motion on Universal Credit tabled in October 2017.

Opposition Motions and the Humble Address

Although most parliamentary business is dominated by the Government, in each parliamentary session several days are set aside for Opposition motions. A Government with a majority can usually be assured of defeating an Opposition motion. Moreover, even if passed Opposition motions are non-binding and the Government is not usually required to do anything in response. Opposition days do, nevertheless, allow opposition parties to set the parliamentary agenda. Ministers must come to the House to respond to a motion and they can be used to put pressure on the Government.

Following its failure to secure a majority at the 2017 general election, the current Government adopted a policy of not contesting Opposition motions, on the perhaps dubious premise, that it could not be said to have been defeated if it did not contest a vote. This approach to opposition days caused considerable consternation on both sides of the House and following an uncontested vote on universal credit in 2017, the Speaker was moved to suggest to Opposition MPs that ‘mechanisms’ were available to secure a Government response and that he would not be opposed to the use of such mechanisms.

The mechanism adopted by Labour at its next Opposition day debate was to table its motion in the form of a Humble Address to Her Majesty requesting the release of certain documents relating to the Government Brexit impact assessments. While Opposition day motions are non-binding, the Humble Address, is a binding resolution of the House. Although it is usually used to communicate the House’s congratulations or commiserations to the Monarch, in a rarely used form, known as a motion for a return, the humble address can also be used to invoke Parliament’s power to call for papers from a Government department.

The Government was caught out by Labour’s use of a motion for a return in relation to its Brexit impact assessments and, reluctantly released the papers to the House. Having successfully forced the government to release Brexit papers, Labour has continued to deploy the motion for a return, with varying degrees of success. Labour has used the Humble Address as a motion for a return eight times in this parliamentary session, including the motion calling for the release of the Attorney-General’s legal advice on the EU withdrawal agreement. Labour has not, however, had it all its own way. In May this year, in response to an expansive opposition motion requesting documents relating to the Windrush scandal, the Government decided that it could no longer afford to allow Labour a free hand and, for the first time in this Parliament, contested and defeated an Opposition motion.

In this context it was little surprise when Labour used its Opposition day on 13th November to present a Humble Address requesting the release, ‘in full’, of any legal advice relating to the withdrawal agreement. Although, as indicated by the Windrush motion, it was by no means certain that the motion would be approved by the House, the Government had already come under pressure to release the Attorney-General’s advice. When it became clear that Labour’s motion would also be supported by MPs from the DUP and Conservative MPs opposed to the Prime Minister’s withdrawal agreement, the Government chose not to contest the motion which was approved without a vote. The Speaker advised that ‘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.’

The Government’s response to Parliament’s demand for the Attorney-General’s legal advice

Last Monday, the Government sought to head off the demands of the House by publishing a lengthy overview of the legal position with regard to the UK’s withdrawal from the EU and sending the Attorney-General to the House of Commons to explain his legal advice and why the Government was not releasing it in full. Despite a robust performance from the Attorney-General, there was considerable concern on both sides of the House, both regarding the legal implications of the withdrawal agreement and also the Government’s attempt to circumvent the requirements of the 13th November motion.

Events moved fast on Monday evening. Shortly after the end of the debate on the Attorney-General’s statement, the Speaker revealed that he had received a letter asking that the House be allowed to debate the matter of contempt, “at the earliest opportunity”. The letter, which was signed by the Brexit spokespersons of the Labour Party, the Liberal Democrats, the Scottish National Party, Plaid Cymru, the Green Party and perhaps most remarkably, the Democratic Unionist Party, argued that the information released by the Government that day did not constitute the “final and full” advice provided by the Attorney General to the Cabinet and did not therefore comply with the motion of 13th November.

A little over two hours later, midway through an SNP-led adjournment debate on Scotland’s foreign policy footprint, the Speaker returned to the chamber to announce that having considered the request he was convinced that “there is an arguable case that a contempt has been committed” and that a contempt motion would be debated as first business the following day. The Foreign Office Minister, Alan Duncan was then placed in the unenviable position of stretching out the Government’s response to the SNP’s adjournment motion, long enough to allow the Government to table an amendment to Labour’s motion of contempt before the House rose for the day. To the bemusement and irritation of SNP members, he was assisted by numerous interventions from a group of Conservative MPs who suddenly appeared in the Chamber with a new-found interest in Scottish affairs.

The future of the Humble Address

The Government’s amendment to Labour’s contempt motion, remarkably, sought to refer itself to the Privileges Committee to rule on whether it had responded sufficiently to the demands of the 13th November motion. Interestingly, the Government also sought to question Labour’s use of the Humble Address by asking the Committee ‘to consider the constitutional and historic context and the proper use, ambit and scope of the motion for return procedure.’

In the debate on the contempt motion the Leader of the House, Andrea Leadsom described Labour’s use of the Humble Address as ‘irresponsible’ warning that ‘the House might request, by way of a Humble Address, information that could compromise national security or which might put the lives of our troops in danger.’ Similar concerns had been raised by the Attorney-General in the previous day’s debate, when he had asked:

Where do the limits of this power end? Does it extend to Cabinet minutes? Does it extend to the papers of the secret intelligence service? Is the House, by means of this motion, to command any paper of any kind, central to the interests of this nation, without even being able to check that, by its release, it is causing, or might cause, severe damage to the public interest?

The Government’s amendment was defeated, and the contempt motion approved. The Attorney-General’s legal advice has now been released in full, in line with the instruction of the House delivered on 13th November. The Privileges Committee will ultimately decide whether any punishment will follow. Interestingly the contempt motion which was approved by the House referred to ‘Ministers’ rather than to any individual, which suggests that any punishment should extend beyond any individual, such as the Attorney-General. The Government has sought to keep pressure on Labour’s use of the Humble Address by writing to Privileges Committee to ask it to consider whether it is appropriate. The Privileges Committee, however, acts on the basis of instruction from the House, rather than individual parties and may not feel minded to respond to the Government’s request.

The Government’s response reflects a change in their approach to Opposition motions. The Government had begun this Parliament by whipping its MPs not to vote on Opposition motions in order to avoid the appearance of defeat. Labour’s repeated use of the motion for a return eventually prompted the government to contest these motions, with some success, earlier this year. However, following its defeat on the legal advice motion and the tabling of a motion of contempt, it has now sought to question whether the motion for a return it is an appropriate procedure for the Opposition to deploy.

During the contempt debate the Government repeatedly suggested that the use of the Humble Address as a motion for a return is an arcane, outdated and potentially dangerous practice. Yet Labour has deployed this tactic on several occasions during this Parliament and on each previous occasion the Government has accepted the outcome, albeit reluctantly. The Government was not tricked into releasing the Attorney-General’s legal advice or outflanked by a clever piece of parliamentary procedure about which it was unaware. Given what has already taken place during this Parliament, Labour’s approach and the likely outcome were entirely predictable.

Moreover, whatever the dramatic scenarios presented by Government Ministers, the motion for a return does not give the Opposition absolute power to secure the release of government documents. Parliament already has the power to call for papers, this is a central feature of parliamentary sovereignty. The motion for a return provides a mechanism to enact that power, but it may only be enacted if a majority of MPs support it, this is also a central feature of parliamentary sovereignty. The Government simply failed to secure a majority to defeat Labour’s motion of 13th November. Parties which can command a majority in the House of Commons, whether Government or Opposition, face very few restraints on their powers.

Opposition motions do not usually cause Governments such difficulty. They have done so in this case, not because parliamentary procedure is weighted against the Government, indeed quite the opposite is true, but rather because the Government cannot command a majority in the House of Commons. If the Government thinks this is damaging to the national interest it should consider its own position rather than seeking to blame parliamentary procedure.

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