Among the many ways in which Brexit has tested (almost to destruction) Britain’s unwritten constitution, the most unexpected was the recent House of Commons motion declaring the government to be in contempt of parliament. The ground for this motion was that the government’s failure to provide “papers” sought by the Commons, in this case the attorney general’s advice on the implications of the proposed withdrawal treaty, amounted to a contempt.
Now, the reaction of most informed Irish spectators to this situation would be: is not this covered by something like our “Cabinet Confidentiality” case? The ruling in this 1993 Supreme Court case was that since the Irish Constitution states that government responsibility is collective, it needs must follow that government discussion or papers going to the government are confidential. This ruling would thus have included the attorney’s opinion.
A second line of attack would be simply that, in general, whether one is talking about the government or a private individual, a court of law cannot direct a person to disclose advice given to them by their lawyer.
The reference to a court of law takes us straight to the heart of the matter.
The British parliament, shaped by its eight centuries of continuous history, reaching back to the era before the separation of powers was discovered and including the defeat of the king in the 17th-century civil war, remains, among other things “the high court of parliament”. What this means is that the House has its own rules, notably in the field of defamation, but also, as in the present case, in its supervision of the government. It interprets these rules and has the power to enforce them. The last time it actually imprisoned anyone was 1880, but there have been, more recently some close shaves.
In contrast, the position in Ireland is that the powers and privileges of the Oireachtas are tidily set out in the Constitution and the courts have the last word on their interpretation and enforcement. But, in Britain, the position as regards the supremacy of the courts versus the Commons has not been authoritatively settled because the matter has not come to a head, in modern times, despite the occasional squawk from the European Court of Human Rights. (One might add that, in other contexts and in various historical periods, boundary disputes between different courts are not unknown, for instance: state and church courts; military and civil; national and international).
All this, it may be said, is of interest to those who are interested in such things; but how does it help, in the modern machinery of modern, democratic government?
One pragmatic answer to this question is that giving all relevant information, to parliament and public, on such an important and disputed matter, is well in line with the contemporary movement in favour of open government. The source of the idea of calling for papers may be medieval. But the current is well in line with the policy of the Freedom of Information Acts.
It may be objected, and was vigorously, by the attorney, in the House of Commons, that legal advice should be treated differently from other types of advisory document. In the light of the sort of point made earlier, about the rules of the House of Commons being different from those in a law court, the attorney put his argument on the basis of a “convention of the constitution”. These beasties, which figure more largely in Britain than elsewhere, are not exactly law, but have importance in the way the machinery of government operates: the most important example would be the rule that the queen does as she is directed, by the prime minister. Nevertheless, on this occasion, this argument cut no ice with the Commons majority.
But, considering the centrality which legal advice sometimes takes in Irish current affairs, this British precedent (assuming it is one) is worth some attention here. Government ministers usually refer to legal advice, which always happens to support their side of the argument, in tones of quiet reverence; Charles Haughey, for instance, when resisting becoming a caretaker taoiseach following his loss of the election in 1989 justified himself on the basis: “We’ve got learned counsel’s opinion on that”; as if referring to the tablets of stone which Moses brought down from Mount Sinai. No one was expected to be profane enough to ask to be allowed to read this piece of holy writ.
Now, where legal advice is connected with a pending court case, one can see, of course that it would give the party on the other side, an unfair advantage, if the government was expected to disclose its advice. Furthermore, it is sometimes difficult to anticipate whether in fact there may be legal proceedings coming down the track.
But in the case of the attorney’s Brexit withdrawal advice; no litigation was on the horizon. Why then should the disclosure of legal advice which is relevant to an important public decision be forbidden; when, say, economic, climatological or medical advice to the government may be published?
In a society, where one has a parliament to appraise the policy and performance of the government, ought the parliament not to have all the relevant information, unless there is some good reason for non-disclosure, such as security, privacy, decency or, as mentioned, pending litigation?
So, making due allowance for the differences between the two parliaments, here may be something useful to Ireland to emerge from Brexit.
David Gwynn Morgan is Emeritus Professor of Law, at UCC.