PARLIAMENTARY DEBATE
Legal Costs: Article 50 - 2 February 2017 (Commons/Commons Chamber)

The case that concluded in the Supreme Court last week dealt with an important constitutional issue. It was absolutely right that the Government both defended their position and appealed against the first-instance judgment in England and Wales to the Supreme Court, where the case was heard alongside connected litigation from the Northern Ireland courts. The figures for the total costs of those cases will be published in due course, but I can confirm that the Advocate General for Scotland and I, who appeared on behalf of the Government, received no additional fee for our work on the case.

I thank the Attorney General for his response, although I am not sure that we have got any closer to learning the figure. Given that every serious legal commentator in the land said that the Government’s appeal was doomed to fail, will he please explain to the House why it was so necessary to waste taxpayers’ money on funding the appeal?

I am afraid that I do not agree with the hon. Gentleman’s premise. Let me point out a number of things to him. First, I think that the Supreme Court of the United Kingdom is the right place in which to decide a case of such significance. Secondly, if the Government’s arguments had been as hopeless as the hon. Gentleman suggests, three Supreme Court justices would not have agreed with them. Thirdly, as I have already pointed out, the case was in the Supreme Court partly because judgments in Northern Ireland cases were appealed against to the Supreme Court, not by the Government but by the other parties. The Government responded to those cases, and, incidentally, were successful. Fourthly, the Supreme Court was dealing with arguments presented by the devolved Governments, which had to be dealt with by the Supreme Court. In that instance, the Government were again entirely successful.

Lastly, let me say this to the hon. Gentleman. I think it is a good thing that, in a system governed by the rule of law, a Government are prepared to go to court to argue their case, to make use of appeal mechanisms like any other litigant, and then to abide by the final outcome. That is what has happened, and I think it is a good example of the way in which a rule-of-law system should work.

Does my right hon. and learned Friend agree that when members of the public bring cases on a matter of this importance against the Government in Northern Ireland and in England and Wales and there are conflicting decisions, our Government have no alternative whatsoever but to pursue this matter to the Supreme Court?

I do agree. It is important that the Supreme Court resolved this matter and gave us clarity on what should now happen, and it is now for Parliament to decide what to do next—and I am pleased to see that last night Parliament began to answer the question it had been posed.

When the costs are eventually published, will the Minister ensure that the price that was exacted was for liberty and freedom from the bureaucrats in Brussels, against which it is very difficult to attach any cost?

I take the hon. Gentleman’s point. This will be an expensive case, but the answer the British people gave should be respected and acted upon, and that, as I say, is now a matter for Parliament—it is no longer a legal matter—and I hope very much that Parliament will answer it clearly.

The Attorney General maybe needs to think again about some of the dubious shorthand that he uses in respect of the devolved cases. The Supreme Court really only made clear judgments in relation to two of the five matters that were referred in relation to Northern Ireland, and on one of them some of its observations are politically telling in ways that the Government are yet to respect.

The other three issues were not determined because they did not need to be, as other aspects of the case were decided as they were. But I am afraid the position is very clear: in relation to the arguments being made, particularly by the devolved Administrations, that there should be the capacity for those Administrations to veto the process of leaving the European Union, the court simply did not agree and rejected those arguments unanimously.

On the subject of the cost to the public purse, I hope, rather than a rerun of all the arguments, which would be very tedious.

I think the whole House would like to know that we got value for money in that judgment, and of course there are lots of rights and obligations in many Acts of Parliament and it is the courts’ job to interpret them. Can the Attorney General explain why the Supreme Court held that the Sewel provisions in an Act of Parliament were not a matter for the courts?

I am sure that the hon. Gentleman will read the judgment carefully: it says that whereas the Sewel convention might be important politically, it is not a matter for the courts to enforce. That was perfectly properly for the Supreme Court to say. What respect the Sewel convention is given in political terms is of course not a matter for the court. The judgment made that clear.

The operative words are “public purse” and “fees”. Can we stick to that? It would be helpful.

If the Government were genuinely motivated to spend this money by wanting a definitive answer from the courts on a constitutional question, why did they not thank the judges in the divisional court in November for such a clear answer, instead of being in a position where the Justice Secretary had to be pressured into giving a lukewarm defence of them?

No, the Government have always been clear that, at every level, the courts are entitled to consider the cases brought to them and to reach whatever judgment they think appropriate in the light of the arguments they have heard. That was true in relation to the High Court and it is true in relation to the Supreme Court, too. But the hon. Gentleman knows, as an eminent lawyer himself, that the appropriate thing to do if we disagree with the court of first instance is to appeal the judgment. That is exactly what the Government did, doing exactly what any other litigator would do—and, incidentally, exactly what some litigators in this case did in Northern Ireland.

Is it not absolutely remarkable that we have significant numbers of litigants in person in our courts because of the Government’s legal aid cuts, yet when the Government wanted a lawyer, the money was found? Is it not the case in terms of access to justice that there is one rule for the Government and another rule for everybody else?

I am tempted to point out that, as I said earlier, when the Government wanted a lawyer, two out of the three they used in the Supreme Court did not cost the taxpayer anything. I also point out to the hon. Gentleman that when cases like this one are brought—and I make no criticism of those who brought these cases so that these issues could be resolved—it is important that they are resolved through proper and full legal argument. That was done through the High Court and then the Supreme Court. That is the right way to get to the answer the Supreme Court has now given, and, as the hon. Gentleman knows, I have made clear very many times that the Government will honour and respect the judgment of the Supreme Court.