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Law Officers' Advice

Oral Answers to Questions — Solicitor-General – in the House of Commons at 10:30 am on 8th February 2007.

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Photo of Andrew Robathan Andrew Robathan Opposition Deputy Chief Whip (Commons) 10:30 am, 8th February 2007

What assessment he has made of the merits of the legal advice of the Attorney-General to the Cabinet being made public.

Photo of Tony Baldry Tony Baldry Conservative, Banbury

On what grounds Law Officers' advice to Ministers is confidential.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

Robust advice from a lawyer to a client has to be based on relationship of trust and candour, and therefore advice is normally confidential. Law Officers' advice to Ministers has similar legal privilege. That is reflected in the ministerial code. In certain cases, it is, however, right for Parliament and the public to be given an explanation of the legal basis for certain decisions that have been reached. Yesterday afternoon, we discussed some of the basis for some decisions in relation to the BAE case and the al-Yamamah contract.

Photo of Andrew Robathan Andrew Robathan Opposition Deputy Chief Whip (Commons)

This is very different from the relationship between a private client and his solicitor. Has the Solicitor-General managed to take the time to discuss the matter with his predecessor, Ms Harman, whose thinking is exactly the opposite of his? In the current climate, is it not vital that the Government be open about what has been said and about the legal advice that has been given on various issues, not least the war in Iraq?

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

There are various views about this. The Minister of State, Department for Constitutional Affairs, my right hon. and learned Friend Ms Harman, is entitled to her view, I am entitled to mine, and the Attorney-General has expressed his. If advice were open, everyone would know it, but it would be subject to constant criticism by every lawyer with a different opinion. Such a situation could lead Ministers to be less open with Law Officers, and Law Officers might be more circumspect about their advice if they knew that it was going to be made public. The Government need robust advice, not anodyne circumspection. If Ministers and Law Officers knew that advice was going to be made public, they could take that fact into account. However, we would not want a situation in which Ministers who needed good legal advice did not come and get it.

Photo of Tony Baldry Tony Baldry Conservative, Banbury

The Minister of State, Department for Constitutional Affairs, Ms Harman, said:

"It is a contradiction in terms to have an accountable office-holder who is not able to publish to those whom he is accountable the advice he has given. It is not enough for government ministers to say we are advised that it is lawful. Backbenchers, let alone the wider public, want to see for themselves what the arguments are."

Presumably the Minister of State and the Solicitor-General are both bound by the doctrine of collective responsibility. Which one of them speaks for the Government?

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

The Government's view is quite clear. It is set out in the ministerial code, which sets out the position of Ministers. As I have said —[ Interruption. ]

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

My right hon. and learned Friend the Minister of State has expressed her view. She is entitled to have a view, but the view of the Government is that set out in the ministerial code. The view is clear and one that the Information Commissioner recently set out in an opinion. Let me quote what he said, because it is useful:

"The wider principle that legal advice should attract legal professional privilege is supported by very strong public interest arguments. The principle promotes the administration of justice and the ability of an individual to confide in his legal adviser, receive advice, and take appropriate action to abide by the law. The arguments for maintaining legal professional privilege are strong and therefore the circumstances in which the public interest will favour disclosure of information that is legally privileged are likely to be highly exceptional."

Photo of Keith Vaz Keith Vaz Labour, Leicester East

Let me help my hon. and learned Friend. It is a settled precedent that the advice of the Attorney-General should be confidential. The Minister of State, Department for Constitutional Affairs, my right hon. and learned Friend Ms Harman, who is a former deputy to the Attorney-General, has said completely the opposite. Is she not bound by collective responsibility on the matter? Bearing in mind that it is Valentine's day next week, on 14 February, will the Solicitor-General act as Cupid and patch up this problem between the Attorney-General and his former deputy?

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

I am grateful for my right hon. Friend's assistance. He showed yesterday that he was able to assist Bollywood stars—he did a high-profile job in doing so. I am not quite sure that we need such publicity for this matter, although he will no doubt ensure that we get a little bit more.

It is the Government's view that disclosing all the detailed legal advice that Ministers sometimes request from Law Officers might involve the disclosure of arguments. The Government would then have to set out those arguments, after which they would just be challenged in the courts. Such a situation might well create uncertainty about sound legal advice because both sides of an argument could often be referred to. The advice thus might well highlight Government vulnerability. I take a different view from my right hon. and learned Friend the Minister of State, and I must say that the Government do, too.

Photo of Simon Hughes Simon Hughes Shadow Attorney General, Shadow Lord Chancellor and Shadow Secretary of State for Justice, Party Chair, Liberal Democrats

Everyone understands that there is a tradition of privilege regarding advice given to a client. However, will the Solicitor-General talk to the Attorney-General—the evidence that the Attorney-General gave yesterday showed that he was clearly willing to think about developing the role of Law Officers—and suggest that there is a clear distinction between the advice that the Government are given when they are working out their view, which is perfectly properly confidential, and advice that gives the Government a justification for coming to Parliament to argue a case on the basis of that advice, as was the case when the decision was taken on war in Iraq? There must an argument for knowing the advice if the Government come to Parliament and say that they have been given advice that justifies what they are trying to persuade Parliament to do.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

I am with the hon. Gentleman part of the way. There is an argument for setting out the legal basis on which advice has been reached. Arguably, that was done to some extent in relation to the Iraq war, but also on a range of other issues where difficult decisions, such as in the BAE example, were involved. As Law Officers, we have to come before the House to answer questions, set out the arguments and participate in a substantial debate over such decisions, so it is not the case that we are saying nothing should be discussed. What we are saying is that, if it is suggested that all sorts of legal advice on a whole range of issues should be made freely available, I would have to disagree, because it would undermine the basis of trust between Ministers and the Law Officers. There are certain circumstances in which it is appropriate to bring before the House the advice that has been given and to explain at least the basis of it.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

One feels rather sorry for the Solicitor-General. If the Minister of State, Department for Constitutional Affairs, represents the normal category of client within the Government with whom the Solicitor-General has to deal, he clearly has a rather harder time that I would normally have expected. Can he make one point clear? If there were to be any change, would it not have to be directed by the Prime Minister, thus making it something over which the Law Officers have no control at all? Legal professional privilege attaches not for any advantage to the Law Officers, but to those who receive the advice. Therefore the Minister of State's comments cannot be aimed at the Law Officers; presumably, they are aimed at the Prime Minister.

Photo of Mike O'Brien Mike O'Brien Solicitor General, Law Officers' Department

It is certainly the case that legal privilege attaches to the client rather than the lawyer. That is the case across the board. It is therefore the case that it must be a decision for the client—whether it be a Minister or the Prime Minister—to take a view as to whether the advice should be published or not. It is a matter for the lawyer to give the advice in a robust and straightforward way, which is what we as Law Officers seek to do. It is a matter for the Minister to decide whether it is disclosed, but the ministerial guidance requires that the consent of the Law Officers be obtained before that is done. A better approach is for Ministers to indicate that they are seeking advice and that they are seeking for it to be made public; in those circumstances, the Law Officers would be able to take a view as to how best to put that advice.