Law Officers

– in the House of Lords at 11:33 am on 15th December 2005.

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Photo of Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank Liberal Democrat 11:33 am, 15th December 2005

rose to call attention to the role of the Law Officers; and to move for Papers.

My Lords, when the noble and learned Lord, Lord Falconer, moved the Second Reading of the Law Officers Bill on 16 June 1997, it was one of the first Bills of the new Government. It was also his maiden speech and I believe that the noble and learned Lord was also the first Solicitor-General ever to be sitting in the House of Lords. In the course of his remarks, he thanked those colleagues who had welcomed him when he took his seat a month earlier and generously mentioned me as having said that I was not sure what the Solicitor-General did, but it was good to see him in the House. What I had tried to say, was that if we were obliged to have a Solicitor-General at all, I was delighted to see him there.

I mention that as a preface to my remarks today, because behind the rather bland description of the Motion is a subversive proposal for removing the Law Officers from either House. This would bring an end to their dual role as both active politicians in either House, and what is called,

"exercising their genuinely held independent views" as legal advisers to the Government.

I am not a lawyer or a constitutional historian. If I refer in passing to recent and current affairs and to existing law officers, that is not my chief purpose. I am interested in the principle, irrespective of any administration or person. Under the rules for the conduct of balloted debates in the Companion the purpose is,

"to provide a forum for discussion", and I hope that I will contribute in that spirit.

The Law Officers Act 1997 says that:

"Any function of the Attorney-General may be exercised by the Solicitor-General", so if I refer mainly to the role of the Attorney-General, it will probably embrace his deputy. Since earlier this year we have had an additional law officer in this House, taking her place on the Front Bench today—the noble and learned Baroness, Lady Clark of Calton, the Advocate-General for Scotland. The noble and learned Baroness's powers do not extend to those of the Attorney-General or the Solicitor-General. The Advocate-General, her website tells us,

"has no policy responsibilities and works in a ministerial capacity as a lawyer".

But we are told that in 2005 she was,

"elected to the House of Lords"

"elected" is a bit premature—and that among her interests is pension reform, which seems to involve rather more than legal advice. According to Hansard, the Advocate-General works in the Law Officers' Department but according to the Cabinet Office list of ministerial responsibilities, the noble and learned Baroness, Lady Clark, is a member of the Department for Constitutional Affairs. Her name does not appear at all on the Cabinet Office list of spokesmen in the Lords.

The noble and learned Baroness, Lady Clark of Calton, made an admirable maiden speech on 24 October, in winding up the Second Reading of the Consumer Credit Bill. However, that seems rather odd, given that she apparently has "no policy responsibilities" and no speaking role. I make no personal criticism of any kind. The noble and learned Baroness, Lady Clark, has a distinguished legal record in Scotland and at the English Bar. I say only that, despite some confusion of identity, as a member of the Government even the most junior law officer seems to have an inescapable dual role, as she had when she was in the House of Commons.

Forty years ago, at the 1964 general election, 100 barristers were elected to the House of Commons—32 Labour MPs, 64 Conservatives and four Liberals—but by 2005 there were only 34. As the profession has increased its numbers fivefold and QCs have trebled since the 1960s, it is the pressures of work and the Whips that make it very difficult for Members of Parliament both to make significant progress at the Bar and to carry out their parliamentary obligations.

A standard text on constitutional and administrative law by Phillips & Jackson says that the recent appointment of the law officers to the House of Lords failed to cause a stir,

"presumably a reflection on the calibre of lawyers in the House of Commons, at least on the government benches".

I said that when the noble and learned Lord, Lord Falconer, became Solicitor-General, he was the first holder of that office to sit in the House of Lords. Two years later, Lord Williams of Mostyn became the first Attorney-General in the Lords. Both had been leaders in their profession, as the noble and learned Lord, Lord Goldsmith, has been. I do not believe that two more recent Solicitor-Generals would ever claim any such comparable record, although, under the 1997 Act, both have been free to exercise the important, sensitive and highly charged functions of the Attorney-General.

Nearly 30 years ago, the noble and learned Lord, Lord Archer of Sandwell, the then Solicitor-General, wrote a short booklet for the Fabian Society. It was a useful guide for laymen about the roles of the law officers. He said that if the Government's senior legal law officers were chosen from among practising barristers, it did not follow that they need also to be politicians. But in practice the law officers are members of the Government. They are party politicians with a political commitment.

That is the heart of my concern. I will turn around the description of the noble and learned Lord, Lord Archer: the custom and practice in the United Kingdom is for the law officers to be politicians, but they are not required to be. In my view, the dual role of the law officers as Ministers, sharing collective responsibility within the Government and publicly advocating and defending their policies, then standing aside to give detached, independent advice to their clients—their own colleagues—is no longer credible, if it ever was.

In the famous Campbell case of 1924, Sir Patrick Hastings was held to be a compliant Attorney-General anxious to do the bidding of his Cabinet colleagues, though it took nearly 50 years until the uncomfortable truth clearly emerged. In a different kind of case, as a new Member of Parliament I followed the debate in May 1963 over the Government's refusal to grant political asylum to Chief Enahoro. I remember Sir John Hobson, the Attorney-General, tied up in a knot in endeavouring to balance his dual role in both defending the Government with their backs to the wall, and exercising his independent legal advice.

In 1964, the Attorney-General—now the noble and learned Lord, Lord Lyell of Markyate—needed to say of—

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative

My Lords, would the noble Lord give way? I think he is slightly confused, as in 1964 I had just left Oxford. I think the noble Lord is referring to somebody other than the Lord Lyell of Markyate, which is me.

Photo of Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank Liberal Democrat

My Lords, forgive me. I should say that in 1992 the Attorney-General—now the noble and learned Lord, Lord Lyell of Markyate—needed to say of the Maastricht Treaty that he was "independently and dispassionately" giving legal advice to the Government, a statement which did not end the argument.

The legality of the use of force against Iraq has been and remains a major issue causing problems for the present Attorney-General. On 1 March this year, the noble Lord, Lord Skidelsky, again asked the Government to publish the full text of the Attorney-General's opinion. This arose from a recent claim in the Guardian newspaper that the Government had manipulated the legal justification for war and put pressure on the Attorney-General. The noble and learned Lord, Lord Goldsmith, declined, saying three times that,

"my own, genuinely-held, independent view",—[Hansard, 1/3/05; col. 112.]

was that military action was lawful. Inevitably, that will not be the end of the matter.

On a different matter, the noble and learned Lord wrote to the Independent on 22 October—seven weeks ago—about an allegation that he had bowed to political pressure not to prosecute a tragic shooting. In that he drew on what he called the classic statement made by the Attorney-General, Sir Hartley Shawcross, in 1951 about the independent role of the senior law officer.

Those are only a few among a long list of occasions when the dual role of the Attorney-General of the day led to a challenge or provoked a political dispute. I am not saying, except in the case of Sir Patrick Hastings, that over the years the Attorney-General has abused his position. I do not know. I have the highest regard for those Attorney-Generals and other law officers I have known personally in either House. The fact remains that all too often doubt lingers in the minds of other politicians, the public and the press. It would be far better for the law officers to be happily outside government as they are in a number of countries.

A visitor from, say, a former Soviet republic somewhere in the Caucasus is brought by the British Council to Westminster to learn about democracy. "Please tell me", he respectfully asks, "about the role of the Attorney-General". "His job", his host replies, giving him lunch in the House of Lords, "is to give his genuinely held, independent, legal advice to the Prime Minister of the day". "Then he must be a neutral figure, expert in law and above politics?". "Well, not exactly, he is a senior member of the government of the day, attending Cabinet and dealing with the sometimes irresponsible Opposition". The visitor is now looking a little puzzled. He says, "But who hires this talented man, looking both ways; is it Her Majesty or the Lord Chief Justice?" "Er . . . no, it is the Prime Minister". "But, forgive me, then who sacks him?" "The Prime Minister", says the host, "but occasionally he promotes him". "Thank you" says the visitor, taking a second glass of claret. "Your British democracy is reassuringly familiar".

I beg to move for Papers.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour 11:47 am, 15th December 2005

My Lords, I congratulate the noble Lord, Lord Rodgers, on initiating this debate. I fear, as he anticipated, that I will disagree with his conclusions.

The office of Her Majesty's Attorney-General can be traced back to the 13th century, when charged with the responsibility of upholding the King's interests in the courts when the King himself could not appear. I am proud to have held that office. The office has changed substantially since the time when the noble and learned Lord, Lord Rawlinson, was able to say that he had prosecuted on each and every circuit save for Wales and Chester. The Attorney-General's department is where the roles of Whitehall, Westminster and the legal profession meet, and the demands of the government machine and statute are ever-growing. I confess that the problems of international law took a disproportionate amount of my time.

The Attorney-General has a very wide portfolio—quasi-judicial, professional and political. The noble Lord, Lord Rodgers, said, "Why have him at all?", if I may paraphrase him. "Why should a politician preside over these duties?". In 1614, the other place resolved, when Sir Francis Bacon was elevated from Solicitor-General to Attorney-General, to accept Bacon's presence in that Parliament,

"but never any Attorney-General to serve in the lower House again".

That injunction was consistently broken for 385 years until I retired as Attorney-General, to be followed, for the first time, by two Members of your Lordships' House filling the role in succession.

The reason for the absence of Commons Attorney-Generals at present is that the Commons has become so demanding that it is only with extreme difficulty that one is able to pursue a political career—including the demands of a constituency—and a legal career at the same time, with the time, care and attention necessary.

The same problem applies in other professions; there are no captains of industry in the Commons or eminent trade union leaders. There are, fortunately, signs of an improved pool of legal talent there now.

I believe fundamentally that the Attorney-General should be seriously involved, and experienced, in politics. I should very much prefer him to be a Member of, and accountable to, the House of Commons. That is in no way a reflection on present or recent holders of the office. If there is no-one of merit in the Commons, the Prime Minister has no choice but to elevate a practitioner of eminence to your Lordships' House and appoint him Attorney-General.

Why has he to be accountable? In many respects he is just like any other Minister of the Crown, and subject to collective responsibility, he to other Ministers and they to him. However, because of those considerable areas where he is not acting as a Minister but exercising his own unique responsibilities as Attorney-General, he must be accountable somewhere. Such are his onerous tasks that I believe it is inescapable that he must be directly responsible to Parliament. That is what the noble Lord has not addressed.

As Attorney-General, he is responsible for prosecutions, either those by statute that he authorises himself, or those by the Director of Public Prosecutions. Among many cases, I had to authorise personally by statute a prosecution under the War Crimes Act, although I had spoken and voted against the measure. I tried to approach the papers with the same care as if I were to prosecute it myself. That, of course, took many a long hour, as did many of the other cases I had to authorise. I was tempted to prosecute it myself. It was my field—I had been a criminal lawyer all my life—but I just could not visualise a scene where I could be away from my duties to the government machine for two or three months to do the case properly. It is no good opening a case and walking away from it. One had to do much more than that. As it happened, the case included a visit to Byelorussia. I regretted that, and I was sorry, but it was just not conceivable to be away for three months. Those are the current pressures of the government machine.

In some cases, the Attorney-General has to exercise his discretion. There is no rule that every case has to be prosecuted. He decides, acting quasi-judicially, whether it is in the public interest to do so. He is on his own. It has been said that he may consult colleagues. I may be wrong, but I have no recollection of consulting anyone—or, indeed, of anyone canvassing me. Prosecution is an independent function, not a governmental one. Given this onerous role, has he not to be directly accountable to Parliament? An honourable Member may raise any prosecution that has taken place on the adjournment, and I well remember my noble friend Lord Campbell-Savours doing so extremely effectively. As Attorney-General, I replied, and rightly so.

The Attorney-General is also the Government's principal legal adviser, and I happen to hold the orthodox view that the relationship between the Attorney-General and the Government in this context is that of a solicitor and client. It is an error, except in extraordinary circumstances, to reveal legal advice, whether it is that of the Attorney-General or of any other lawyer. He is the adviser to the Commons and to the Speaker. He advises on peerages, and advises the Sovereign in a personal capacity. Until recently, he was a member of the Commons Privileges Committee.

Above all else, though, the Attorney-General is the guardian of the public interest. That sounds awfully pompous. He will intervene in the public interest in litigation between other parties. Some difficult medical cases come to mind. He may refer unduly lenient sentences to the courts. That is a really hot potato. Week after week, it demands a lot of the Attorney-General's time, particularly in cases of causing death by dangerous driving, where there is considerable family anguish because of the loss of a dear one. No amount of punishment can bring back the lost member of the family. The help of an MP is enlisted and he can raise the matter on the Floor of the other place. As a lifelong politician/lawyer, I would not wish to lose that kind of accountability.

Every Attorney-General in his time attracts a degree of controversy. But over the centuries, the office has weathered the storms. A senior legal adviser once told me, "If you are not in the news as Attorney-General, you are doing well". Turn the Attorney-General into a paid official, however eminent, but who is not a practising politician and Member of either House, and you lose the vital link of accountability. The office has been entrusted to the Attorney-General, and it his duty to carry out that role.

Photo of Lord Maclennan of Rogart Lord Maclennan of Rogart Spokesperson in the Lords, Scotland, Spokesperson In the Lords (With Special Responsibility for Civil Service Reform), Cabinet Office

My Lords, can the noble and learned Lord say whether he sees a principle that makes it appropriate for the Attorney-General to be sitting in one House of Parliament, but not the Lord Advocate, the Scottish law officer who has not identical but largely comparable powers? Why one constitutional principle for England and Wales, and another for Scotland?

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, if my memory serves me correctly, for many years when I was in the other place, the Lord Advocate was not a Member of either House. I fear that that problem arose because no Scottish lawyer has succeeded in winning a place in the lower House and none had been appointed to this place. It was because of a dearth of talent, I suspect, that such people had not been able to achieve political office.

My time is running out. The Attorney-General in previous times was nicknamed the "bulldog of the Crown". When Lord Elwyn-Jones was Attorney-General he preferred to call himself "the corgi of the constitution". I would avoid animal parallels, but say that the Attorney-General is a constitutional safeguard of some importance.

Photo of Lord Wedderburn of Charlton Lord Wedderburn of Charlton Labour

My Lords, perhaps I may intervene if the noble and learned Lord is still semi-recumbent. Does he not agree that it is now fundamentally more difficult for someone who now takes a seat in the House of Commons than at the time of his very distinguished career, there and as Attorney-General, to excel at that career while being a leader at the criminal Bar and, indeed, a leader in international law, given that we have seen such expansion and difficulty in both subjects, which it is essential for the Attorney-General to command? Is that not a factor which the noble and learned Lord's marvellous disposition did not highlight as much as the facts of life of change?

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, I think I made that point earlier in that it is difficult to recruit eminent members of the legal profession to the House of Commons because of the demands. Now that there are signs of an increased pool of talent, I hope that again there will be an Attorney-General in the House of Commons. But the Attorney-General is not expected to be an expert in all fields. I was only a criminal lawyer, but I had the advantage of expertise, of Treasury counsel, and a whole range of sources of advice, if required.

Photo of Lord Mayhew of Twysden Lord Mayhew of Twysden Conservative 11:59 am, 15th December 2005

My Lords, I, too, thank the noble Lord, Lord Rodgers of Quarry Bank, and congratulate him on initiating this debate. It is important that the role of the law officers should be examined and ventilated. I declare an interest or whatever interest that I suppose may derive from the fact that for four years I was Her Majesty's Attorney-General and for five years before that I was Solicitor-General. Perhaps that interest is mitigated by the fact that I tried very hard to avoid becoming a law officer. I thought that it was a bourn from which no traveller returned. Fortunately for me I was wrong about that. I tried hard not to become one, and I certainly have no ambitions to become one again. That is not to say, however, that I think that the role of the Attorney-General should be revised. Difficult though it undoubtedly is, it suits our needs rather well and it certainly serves the public interest better than any alternative.

It is a great privilege to follow the noble and learned Lord, Lord Morris of Aberavon, with whose speech I wholly agree. Nine minutes is a touch too short to attempt to cover the whole field, tempting though it is, and in particular the issue of the non-publication of the terms—the terms as distinct from the essence—of the Attorney-General's advice to his ministerial colleagues.

I agree with the noble and learned Lord that the heart of the role of the Attorney-General is his accountability to Parliament. That is central. I sympathise with the difficulties which the visitor from the Caucasus would have in understanding the role of the Attorney-General, but if that had been explained in the way that the noble Lord, Lord Rodgers, described, he might have been reassured.

Let us look at the prosecuting function of the state. At its head stands the Attorney-General. He is answerable first and foremost to the law, as the noble and learned Lord, Lord Morris, said. Surely no arm of the state is more invasive of individual liberty and the well-being of the citizen than this one. We have only to call to mind how even the receipt of a summons for the most minor of infringements is liable to cause real anxiety. The more serious the proceedings, the greater the risks and the fears, and they speak for themselves.

I suggest and contend that fairness and sound judgment of the public interest must characterise the way in which the prosecuting arm of the state is used. It surely follows that whoever has ultimate authority over it—and somebody must have it—must be answerable to Parliament, unless we really are to depart from the fundamental principles of our democracy. I do not mean in the form of some official, however immaculate, giving evidence to a Select Committee. Parliament would never stand for that as being the limit of his accountability, nor would it swallow having some Minister acting as a rapporteur, the reader of a brief—a take-it-or-leave-it message vouchsafed from on high. Accountability for fairness and for soundness of judgment will be demanded in person, at the Dispatch Box, where the sharpest darts can come from behind and where you may find your prospects suddenly rearranged.

That is a very salutary feature of our system, but no system guarantees perfection. The noble Lord, Lord Rodgers, was right to refer to the Campbell case. What he said about Sir Patrick Hastings was true; that is, that you have to go back 80 years to find such an example. Sir Patrick agreed that no prosecution that seemed likely to be sensitive in a political sense should in future be started without the prior approval of the Cabinet—if one can believe that—and he pulled a prosecution that was proving embarrassing.

I am glad to say that when all that became known, the Government fell. It was not a question of waiting 50 years. Very shortly after that, the Government fell, and the prospects of all their members, as well as those of Sir Patrick Hastings, were indeed rearranged. I suggest that that makes the point, rather than diminishes it. You have to go back 80 years to find such an example of an Attorney-General falling short of the required judicial standard. I wish to record at this point my complete confidence in the integrity of the present incumbent.

Should someone else be answerable to Parliament? If it cannot be an official, for the reason I have suggested, and it should be a parliamentarian, then surely it ought to be a Minister because it is a Minister, rightly, who is answerable for the Crown Prosecution Service. We have moved away from the days when chief constables were the clients right through to, and including, the trial. It is a Minister who superintends the Director of Public Prosecutions and who is responsible for the code for Crown prosecutors.

If it is not the Attorney-General, as it is at the moment, then who should it be? I cannot think that we would be very comfortable with any Home Secretary. Should the Minister responsible for the police now answer for prosecutions? He might have politically important targets to meet, perhaps demanding lower thresholds for prosecutions, and I do not think that that would be very agreeable. Nor could it be the Lord Chancellor, in whatever transmogrified form he may assume in future. He will be responsible for appointing the judges and he cannot go in for prosecuting as well.

If it has to be a Minister, I suggest that it has to be the Attorney-General. It is he, after all, who, alone among Ministers, is responsible to the Crown, then to the law, and only then to his political colleagues. The problem perceived is that parliamentary accountability is not a sufficient safeguard for his propriety.

In concluding, I will counter that, but, by way of background, I want to say that it does not stand alone. When I was Attorney-General, I told my officials that if my legal secretary—the number one—at any time believed that I, or any Attorney-General, was acting other than with proper quasi-judicial scruple, it would be his duty to go to the Cabinet Secretary and, through him, to the Prime Minister. That is the extent to which our constitution has evolved. I am sure that I was right, and it is not a negligible matter.

As to the efficacy of having to answer to Parliament, I am well aware of the searching quality of that experience. If I may have half a minute's indulgence, I shall mention that on three occasions, in difficult circumstances, I went to the House of Commons to volunteer a Statement about my ministerial stewardship. To do that when in trouble and not to wait to be dragged there is always wise, but not always enough. Time does not permit a résumé of any of these episodes, but the relevance of each is that I was always very clear that it was my integrity, my competence and my judgment that were under scrutiny. The House of Commons knows how to do that very well, as does your Lordships' House.

I was conscious of all those things and, although I suppose I must have passed the test, I had the best of reasons for knowing that the accountability of the Attorney-General to Parliament was for real and that it was, as it still is, very much for the public good.

Photo of Lord Armstrong of Ilminster Lord Armstrong of Ilminster Crossbench 12:08 pm, 15th December 2005

My Lords, I echo the gratitude expressed by the previous speakers to the noble Lord, Lord Rodgers, for initiating this debate. I, unlike him, am anything but learned in the law and we venture with rashness when we enter into a debate on the role of the law officers where it is predominantly lawyers who will be speaking. But I venture none the less because during my career in Whitehall I became involved in affairs in which the law officers were also involved on a number of occasions, the two outstanding ones being the Westland affair and the Spycatcher business.

In the first case, your Lordships will remember that a letter sent by the then Solicitor-General, who has just sat down, to the then Secretary of State for Defence was leaked to the Press Association. That was done without the agreement of, or consultation with, the Solicitor-General. The Attorney-General, who had just returned from convalescence, took the view that that was a serious breach of the rule of confidence, which is intended to protect the legal advice of the law officers to their colleagues in government. The Attorney-General insisted that the circumstances of the leak should be inquired into by the police, if not by the official machinery for inquiring into leaks.

It did not seem to be a case for inquiries by the police. I already knew who had passed a copy of the letter to the Press Association. The interesting question was whether, and to what extent, the leak had been authorised, and by whom. I was not sure about the answers to those questions, and I undertook the inquiry myself. I made my report to the Prime Minister, and the main conclusions were reported by the Prime Minister in another place.

It seemed to me that the law officers were standing on an important point of principle: the legal advice of a law officer to a Minister should be, and should continue to be, confidential. If a matter might lead to litigation, it must surely be right that legal advice to one party should not be disclosed to the other.

Those events support me in my belief that the principle that the first duty of a law officer is to give the best advice he can to his colleagues on the application of the law in any given situation is correct. In preparing and giving that advice, as previous speakers have made clear, he is not subject to collective responsibility as a Minister. He is exercising sole personal responsibility for his advice. He is accountable to Parliament for that and, as the noble and learned Lord, Lord Mayhew of Twysden, has said, that is an important matter. However, he is not in the same sense accountable to his colleagues. He is, in my belief, entitled to receive and consider points and circumstances to which his colleagues may wish to draw his attention. He may even be entitled to consult them. He is not required, however, to pay any regard to the views they express or the points and circumstances they bring to his attention, if he considers them irrelevant to his considered legal advice. He must not allow them to affect his judgment of what his legal advice should be.

I can remember no occasion, in my experience, in which a law officer has failed strictly and stoutly to observe the principle of his independent personal responsibility, and his independence of the Government as a whole. It would be in no-one's interests that the law officer should not strictly observe that principle. If he were not to do so, the value of his legal advice to his colleagues would be destroyed, and their confidence in him gravely undermined.

So long as the principle is strictly observed, it does not seem to me that it matters that the law officers are also members of the Government. Indeed, I believe that, as previous speakers have said, that arrangement is positively advantageous. As a colleague, and one bound by the Privy Counsellors' oath—as well as by the Official Secrets Act—he can be trusted with information and intelligence that could not, perhaps, be properly or safely entrusted to any lawyer who was not a member of the Government.

I shall not try to recount to this House every aspect of the Spycatcher affair. I am sure that your Lordships will be grateful to me for being thus far economical with the truth. Your Lordships will remember that the Government wished to prevent the publication of Spycatcher, which contained not only serious breaches of secrecy in relation to intelligence on security matters, but also many completely false statements—notably in the allegations of a conspiracy in the security service to undermine the Government of the day. Mr Peter Wright eventually admitted that that conspiracy was confined to one former member of the Security Service, namely himself. As the author lived in Australia and the book was to be published there, it was not possible to proceed against either under the Official Secrets Act, the jurisdiction of which is limited to the United Kingdom. So the Government were obliged to proceed by seeking an injunction in the Australian court for breach of confidence under the civil law relating to confidentiality. The Attorney-General at the time of course had a say in the preparation of the affidavit which was to be submitted to the Australian court. There were two questions: by whom should that affidavit be signed; and who should go to New South Wales to give evidence in support of the affidavit? It was considered that one person needed to be responsible both for signing the affidavit and for giving evidence.

There were, and have continued to be, suggestions that that person should have been the Attorney-General. It was agreed in government that that would not have been appropriate: it was not for the Attorney-General to appear as a witness for the government, answering questions of fact or intelligence. We could not ask the director-general of the Security Service to undertake this responsibility because in those distant times the existence of the Security Service was still not officially acknowledged. It could have been a Home Office Minister or a senior official. In the end the Prime Minister asked—not instructed—me to do it. Without much enthusiasm I agreed that that was probably the right choice in the circumstances. The point here is that it would have been wrong for a law officer to do the job.

It might have been possible for a law officer to be the lawyer who led for the Government in court, but that was not seriously suggested. It would not have been appropriate for a law officer to lead for the Government in civil proceedings in an Australian court. It would have been possible to apply to the Australian court for rights of audience for a member of the English Bar. That was seriously considered. In the end it was decided, for political and other reasons, that it was preferable to retain an Australian barrister. The main point here is that it would not have been appropriate for a law officer to give evidence to the Australian court on matters of fact and confidence.

I have listened to the debate so far, and, looking back on my experience, my conclusion is that on the whole it ain't broke and we don't need to fix it. The Attorney-General has a clear place in the scheme of things, which has stood the test of time, and, provided that the law officers and their ministerial colleagues bear in mind the importance of their legal advice being independent, and of their being thus far outside the role of collective responsibility, the system that we have has done us pretty well in the past and will continue to serve in the future.

Photo of Lord Hooson Lord Hooson Liberal Democrat

My Lords, I wish to make a very brief intervention to say that of course the law officer system perhaps does not bear logical examination, but, in practice, one—

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, I must remind the noble Lord that this is a timed debate and there is absolutely no time for interventions or questions between speakers. The timing is very tight.

Photo of Lord Clinton-Davis Lord Clinton-Davis Labour 12:19 pm, 15th December 2005

My Lords, I think that I am the only solicitor to be involved in this debate. I regard that as a great privilege. The view expressed by the noble Lord, Lord Armstrong of Ilminster, was highly interesting. He was a senior civil servant and has given the House a valuable insight into how the Civil Service looked at those important matters.

We have five former Attorneys-General in this House at present and five former Solicitors-General. All have enriched the governments in which they have served, as well as the offices in which they have participated. In saying that, I am not being economical with the truth. Two of those former law officers are particular friends of mine: my noble and learned friend Lord Morris of Aberavon, who has spoken in the debate, and my noble and learned friend Lord Archer. I hope that those friendships will long endure, although I depart from some of the things that they said.

However, none of them can compare with Solicitor-General Andrew Dymore, who served for no less than 18 years from November 1485. Some may say thank God that that precedent is not being repeated. Francis Bacon, as Attorney-General, once said that the office was,

"the painfullest task in the realm".

I do not think that he was thinking of being the Member for Hackney, Central at the time. Sir Patrick Hastings said that to be a law officer was to be in hell.

Whatever may be the case, the House is indebted to the noble Lord, Lord Rodgers, for stimulating this debate. As has been said, the role of the Attorney-General has evolved over many centuries, starting as far back as the 16th century in its more recognisable form. For many years, the law officers were located in the House of Commons. Indeed, when I was there, it was thought impossible that they should be anywhere else. However, during the time that I have been here, we rejoiced in the fact that the noble and learned Lord, Lord Falconer, has been Solicitor-General. The late Gareth Williams, whom we all mourn and who was an excellent Leader of the House, was also Attorney-General. The noble and learned Lord, Lord Goldsmith, serves as Attorney-General in this House. All of them have established the highest possible standards, but not without controversy.

I depart from the view that has been expressed today in certain measure. At present, we have an Attorney-General here and a Solicitor-General in the House of Commons. Both Houses have benefited from that. Both enable debates to be initiated about law and both are able to answer questions about the role of the law officers. This is the first time that a woman has been appointed as a law officer: I refer to Harriet Harman. She was a solicitor. That is also unprecedented in this context. That involved making a remarkable gesture to the profession of solicitor.

Like both individuals and companies, the Government are entitled to the benefit of a legal adviser, whose advice they can take or reject. That legal adviser operates according to a well defined code and the Government, like the lay litigant, should in my view be able to receive legal advice in confidence. Of course, besides being titular head of the Bar, the Attorney-General is a Member of either House of Parliament. In that connection, Cabinet Committees perform more ably when they are advised by a law officer. We should take into account the fact that the law officer has other people advising him or her.

While the Attorney-General may not be a member of the Cabinet, he is involved in a department's legal problems when special difficulties or matters of real significance arise—as I recall that they did when I was privileged enough to hold the office of Parliamentary Under-Secretary of State in charge of companies, aviation and shipping. In particular, I welcomed the idea of being advised at that time by law officers. The Attorney-General can also be involved in constitutional affairs which may touch on international relations, as we heard today from the noble and learned Lord, Lord Morris of Aberavon. Essentially, however, the Attorney-General makes up his own mind and is under no duty to obey anybody else—not even the Prime Minister. What he must do, as the noble and learned Lord, Lord Mayhew of Twysden, said, is to act in a quasi-judicial way.

What, then, is the role of government vis-à-vis the law officers, apart from what I have already said? Primarily, it is to listen and to question. Should they disclose their opinions? My own view is that detailed advice should not be publicly revealed, although exceptions have arisen when it has been considered expedient so to do. Although something of a rarity, having regard to the fact that the law officers are there to advise the government, the only way that the government seek to justify that exception is that the government alone can decide whether the opinion of the law officers should be disclosed, either wholly or in part. In 1971, the substance of the advice tendered to the government about the export of arms to South Africa under the Simonstown agreement was given. In two cases, involving the Scott inquiry and the Factortane case, the views of the law officers were given but the advice was not, and both cases amounted to judicial proceedings.

Even so, I would wish to avoid the inevitable controversy. In other words, I would prefer a situation where under no circumstances would any part of the law officers' opinion, or a summary of that opinion, be disclosed. That is itself a controversial view, I know. We are in a bit of a mess at present, and the more speedily that can be resolved the better.

Photo of Lord Lyell of Markyate Lord Lyell of Markyate Conservative 12:29 pm, 15th December 2005

My Lords, I am glad to have the opportunity to take part in the debate, and I too congratulate the noble Lord, Lord Rodgers of Quarry Bank, on initiating it with the points that he made. I entirely agree with the noble and learned Lord, Lord Morris of Aberavon, and my noble and learned friend Lord Mayhew of Twysden that the key to this debate is accountability.

The noble Lord, Lord Rodgers, is asking us to account not only for what we did as Attorneys-General but for the principle which justifies our standing in that position as Members of this House. It is not new to question that. Indeed, in a number of Commonwealth countries the Attorney-General is a public official. Interestingly, Lord Shawcross, himself a very distinguished Attorney-General, by the late 1970s, came to ask, in the context of the Clay Cross affair and the Gouriet case, whether the role should not be removed from Members of either House and given to a public official. I am quite sure that Lord Shawcross was mistaken in that view, but it highlights the importance of the question. I am grateful to have an opportunity to join with my noble and learned friends in seeking to justify our role.

The role of the law officers is twofold. They are the government's chief legal adviser and what are sometimes described as the ultimate prosecuting authority. In the jargon of the statute, they superintend the work of the Director of Public Prosecutions, the director of the Serious Fraud Office and—I think still directly, but potentially not so—that of the Director of Public Prosecutions in Northern Ireland. Since the Matrix Churchill case and the Scott report, they have a closer role in superintending the prosecuting role of HM Customs & Excise. The Attorney-General has a general purview over all prosecutions and has the power, deriving from his ability to issue what is called a nolle prosequi, to stop any case. That is a very important power.

Of course these powers are all exercised in accordance with the public interest, of which he is the guardian, and I agree with the noble and learned Lord, Lord Morris, that one of the recent attributes of that is the power to send a criminal case to the Court of Appeal to consider whether a sentence is unduly lenient. First exercised by my noble and learned friend Lord Mayhew, it is an important and responsible power over which we all agonised carefully before using, but it has had a most salutary effect in striking the correct balance when imposing the right level of criminal sentence. That is a level set not by the law officers but by the courts. That is right.

The role is sometimes criticised on intellectual or theoretical constitutional grounds as offending against the doctrine of the separation of powers, as is the role of the Law Lords. In this context, for those who wish to follow it further, I commend strongly a fascinating and scholarly article written by the noble and learned Lord, Lord Cooke of Thorndon, both a Law Lord and a former senior judge in New Zealand. It can be found at page 49 of the Law Quarterly Review for 2003. It is a fascinating exposition and points out how misunderstood the doctrine of the separation of powers is and how much too rigid some academics believe it should be considered to be. In fact, the positions of both the Law Lords and the law officers do not offend against it.

I come to the key point of accountability. I hope the analogy is considered suitable, but it is important to say that our constitution is in one sense pyramidal in shape. In the end, everything rises to the top where it is answerable to Parliament. The only proper exceptions to that are decisions in individual legal cases which are decided by the Law Lords in their judicial capacity. The Law Lords know perfectly well how to separate any political aspects of a case or any political role that they might play in the work of this House and their judicial role. In their integrity they stand second to none in Europe; indeed, I would say second to none in the world.

I learnt from my very early days in Parliament—I had hardly arrived here before the then Attorney-General, then Sir Michael Havers, asked me to be his PPS—that there is an ethos in the Law Officers' Department. Let us remember that law officers are appointed by the Prime Minister and, as the noble Lord, Lord Rodgers, pointed out, can be sacked by the Prime Minister. But they cannot be told how to do their job. They cannot be told what legal advice they should or should not give. I am happy to say that that independence imbues the Law Officers' Department. It imbues it today under the noble and learned Lord, Lord Goldsmith, as much as it imbued it in our day. I join my noble and learned friend Lord Mayhew in saying I will not countenance any attack on the integrity of the Attorney-General. Like those of us before him, he is placed in difficult positions. The facts put to him may be the subject of deep dispute in this House, but again I will countenance no attack on his personal integrity or on his high reputation as a lawyer.

Where would we be if we were to substitute the law officers for a public official? I believe that we would be no better off; rather that we would be worse off. It is one of the reasons why I have anxieties about the system of appointing judges through an outside committee, a judicial appointments commission. The present commission has on it people of the very highest quality, and I suspect, hope and believe that in practice it will continue to maintain what has been a very high standard set by Lord Chancellors down the decades and centuries. But ultimately, and this is where the position of the Lord Chancellor is so important, it must be the Lord Chancellor who is answerable for judicial appointments, just as the Attorney-General is answerable for decisions on the public interest and on the legal advice he gives.

I have two further points before I close. The first has nothing to do with this debate but it was raised in the recent terrorism debate. The noble Lord, Lord Brooke of Alverthorpe, was scandalised that I had not personally visited GCHQ. He said that it was scandalous to hear that in recent years Ministers with positions of power and responsibility for security might not have done so. The Attorney-General has neither the power nor is responsible for security. I and several of my noble and learned friends have sometimes worked closely with the security services and no doubt continue to do so. I know a certain amount about GCHQ but I had absolutely no ministerial responsibility for it.

Secondly, I turn to the interesting point of the advice given with regard to the Maastricht treaty—this is just one example from my 10-year career as a law officer—which led to an all-night debate, a vote of confidence and then to litigation over the advice I had given sponsored by the late Jimmy Goldsmith and brought by the noble Lord, Lord Rees-Mogg. That emphasises a point made by all speakers in the debate. I came before the House of Commons, once sitting beside my noble friend Lord Hurd when he used the advice I had given, and once giving the advice again. I was answerable to the House. The House could question me. If I got it wrong or if, heaven forbid, I had been persuaded in any way by the politicality of the matter, I could have brought down the government. Absolute integrity was necessary. I will not go on, though I could say more about this, except to say that I was happy to find that when it eventually came to court, the court supported the advice I had given.

The key point to make is that one must have a law officer who is accountable and can be brought before either House of Parliament. It is very desirable if he can be in the Commons rather than the Lords, but if he cannot, we have the finest substitute.

Photo of Baroness Farrington of Ribbleton Baroness Farrington of Ribbleton Government Whip

My Lords, if the noble Lord, Lord Goodhart, will forgive me, I rise to remind all noble and learned Lords that when the clock indicates nine minutes, the speaker's time has finished. The number does not mark the beginning of their final minute. That is a universal, slight reprimand across the House. We are very short of time.

Photo of Lord Goodhart Lord Goodhart Shadow Lord Chancellor, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 12:40 pm, 15th December 2005

My Lords, I thank my noble friend Lord Rodgers for introducing this debate which is a matter of constitutional significance. My views on this subject are personal and I am not speaking in my capacity of party spokesman on DCA matters.

As most speakers have noted, we have had a law officer as a member of your Lordships' House only since 1997—first a Solicitor-General, then an Attorney-General. That in a sense is accidental because of the declining number of lawyers of stature in active practice in the House of Commons. As the noble and learned Lord, Lord Morris of Aberavon, said, that is due to the change in the nature of the role of MPs. Constituency business now takes up a large part of their time and it is impossible to act as a good constituency member and to perform the duties of an MP in the House of Commons and to conduct an active practice. It is very different from the old days when F E Smith would appear in the Royal Courts of Justice. When the court rose for the day he would walk down to the Palace of Westminster, stopping at the National Liberal Club on the way to relieve himself in the belief, as he alleged, that it was a public convenience.

The second cause of change in the role of the Attorney-General is the Constitutional Reform Act. That is a little surprising because the Constitutional Reform Act says nothing whatever about the Attorney-General or his role. But by changing the role of the Lord Chancellor, it has indirectly and consequentially changed the role of the Attorney-General. The Lord Chancellor has lost his role as head of the judiciary in England and Wales and as a member of the Appellate Committee of your Lordships' House. He has also lost most of his role in judicial appointments. He no longer has to be a lawyer or a Member of your Lordships' House. His role is now mainly as a departmental Minister. That increases the constitutional importance of the role of the Attorney-General as the senior lawyer involved in government.

During the debates on the Constitutional Reform Act, I argued that the Lord Chancellor should not necessarily be a member of your Lordships' House. I now argue that the Attorney-General should be a member of your Lordships' House—indeed if a Member of Parliament at all.

The main role of the Attorney-General is as legal adviser to government and on occasions as the government's advocate in court. He has a departmental role as head of the prosecution system—but that is a small department. It is constitutionally important to keep the prosecution system at arm's length from the government. A failure to recognise this brought down the first Labour government in 1924. The government's legal adviser must give wholly independent advice. To do so, he must be free from conflicts of interest and be as insulated as possible from pressure from the government.

It is therefore plainly desirable that the Attorney-General should not be concerned about the impact his advice might have on the electors in his own constituency or about the impact his advice might have on his future ministerial career. I am not suggesting that any of the noble and learned Lords in your Lordships' House who have held that office—or any previous one since Patrick Hastings—has acted improperly in that respect. But it is a good idea to remove the risk wherever it can be.

I am not suggesting that the Attorney-General should be someone approaching the end of his career—as is sometimes said of the office of Lord Chancellor. That would limit the office of Attorney-General to the relatively elderly. But the future career of an Attorney-General should be outside ministerial office—as a practitioner, as a judge or in some altogether new field. Those who argued during debates on the Constitutional Reform Act that the Lord Chancellor should be a lawyer and a Member of your Lordships' House were half right: they attached the right conditions to the wrong person—to the Lord Chancellor instead of the Attorney-General.

As my noble friend Lord Rodgers said, there is a strong case for going further—arguing that the Attorney-General should not be a Member of either House or indeed a governmental Minister but should hold an independent office appointed by the Prime Minister. I have some trepidation in supporting my noble friend's view in the face of speeches from three former Attorneys-General. As the noble and learned Lord, Lord Lyell, said, that is the position in several countries which have legal systems derived from the British system—or, to be more accurate, the English system. Among Commonwealth countries, that is true in India and among other countries, in both Ireland and Israel. I have had the opportunity of meeting Attorneys-General from those countries. The arrangement appears to work well in all those countries. I am not yet convinced that this is desirable for the Attorney-General in England but my views are moving in that direction. It is at least a clearly arguable decision and well worth further study.

The main argument in the other way is that the Attorney-General must be accountable to Parliament. I do not believe that is necessarily so. So far as the role of the Attorney-General as legal adviser to the government is concerned, that advice is given to the government as the executive and not to Parliament. The Attorney-General cannot advise both the government and Parliament on the same issue because that would be an obvious and unacceptable conflict of interest. Where accountability lies is here: the government have to be accountable for their decision whether or not and how far to act on the Attorney-General's advice. But it is not appropriate for the Attorney-General to be accountable to Parliament for that advice. After all, it is given as advice and not as a decision.

There is a stronger case for saying that the Attorney-General should be accountable to Parliament for his decisions on prosecution matters. But even here there are arguments that that should not be so. These decisions are different from those taken by other Ministers because the Attorney-General must act independently from the government and is plainly not accountable to the Prime Minister for those decisions. If the Attorney-General is not accountable to the Prime Minister, then there is some doubt whether his accountability should properly lie to Parliament.

The question therefore arises whether it is not at least equally appropriate and perhaps more effective that any checks on improper prosecution decisions taken by the Attorney-General—or decisions where it is alleged he has acted improperly—should be exercised by judicial review of his decisions rather than by Parliament. There is room here for future discussions. The issue that has been raised by my noble friend is important and I support it to a considerable extent. In future we will need to look at this matter in more detail.

The figure nine has not yet come up on the annunciator, so I am glad to sit down before my time is up.

Photo of Lord Morgan Lord Morgan Labour 12:48 pm, 15th December 2005

My Lords, I begin with the proposition that this has been a great reforming and progressive Government in constitutional affairs. I regret the departure of my noble and learned friend Lord Irvine who has been an extraordinary figure in our constitutional history.

One of the principles the Government have embodied and put across is the independence of the representatives of the law, the officers of the law. This was spelled out admirably by my noble and learned friend Lord Falconer in our discussions about House of Lords reform and the importance of segregating the legal from the political. The Lord Chancellor will be detached from the judicial system—indeed he need not be a lawyer at all. There will now be a new Supreme Court that is independent from Parliament and the taint of political prejudice or compromise.

Yet we also have had in this valuable and fascinating debate the completely opposite principle—of legal officers, law officers, bringing these institutions together. They are both independent agents of the Crown embodying the public interest and, as my noble and learned friend Lord Archer of Sandwell observed in his Fabian pamphlet, party politicians with a political commitment in the cabinet are bound by collective responsibility. That is a clear constitutional principle.

There has been criticism of this for many years. The first criticism I recall—apart from, no doubt, Francis Bacon—was of Sir Rufus Isaacs in 1912. He was the first Attorney-General to sit in the Cabinet but was unable to give a legal opinion on whether Cabinet Ministers had or had not benefited from the purchase of Marconi shares because, of course, he was one of them. Very shortly as a result—or a reward—he became Lord Chief Justice, inspiring a famous poem by Rudyard Kipling.

This indicates the kind of complexities that can ensue. We have had variously Lord Simon, who was a Liberal, Lord Shawcross, who was Labour, and, most famously—nobody has referred to him—Lord Rawlinson, who issued a long statement about the desirability of avoiding the ambiguity of the role of the Attorney-General. Like the Civil Service and, as we saw in the Butler report, like the intelligence services, law officers should not be compromised by or subjected to political pressure. The Attorney-General's various roles are embodied in convention under our unwritten constitution—like Topsy, they just "growed"—and there is a tendency to view them perhaps in a somewhat Panglossian fashion; the best of all possible worlds.

The law officers are responsible for the conduct of the criminal justice system, the Directorate of Public Prosecutions, the Revenue and Customs agencies and so on. Many of these activities have a very strong and intense political involvement. It seems to me almost impossible that this should not impinge on the role of the law officers, however distinguished they may be. As Mrs Thatcher indicated in a speech on Westland, there has sometimes been pressure to bring things forward and out into the open.

But the main areas of contention historically have been where law officers have not taken action. We have heard much about the most famous Campbell case, which appeared to be one. Incidentally, I was sent by my noble and learned friend's office a splendid Sargent lecture by the Attorney-General. I agreed with every sentence of it except the sentence quoted from Dingle Foot, who got the Campbell case completely wrong. In a sense, Sir Patrick Hastings had sought out political advice. He had long talks behind the chair with Jimmy Maxton and listened to the very independent view of politics that he had.

Sam Silkin is the most famous recent Attorney-General and appeared in the Gouriet case, of which we have heard. Much of the debate after Lord Denning's famous condemnation concerned, in a sense, a different point: whether or not Lord Silkin was liable and accountable to the courts or whether he was accountable simply to Parliament, which is what he argued. The main issue—the circumstances under which Lord Silkin reached his decision—was not really gone into. There were pressures on a government, which had a social contract with the unions, not to pursue a case where there had clearly been a tampering with the mail services by a union. There appeared to be political involvement but this was not in fact discussed.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, will my noble friend allow me—

Photo of Lord Morgan Lord Morgan Labour

There is not much time.

Photo of Lord Morris of Aberavon Lord Morris of Aberavon Labour

My Lords, Lord Silkin was exonerated by a higher court. That should be said.

Photo of Lord Morgan Lord Morgan Labour

My Lords, I agree. I am sorry, I am afraid I did not mention it given the brevity of the time. I must ask for an extra 30 seconds. In discussing the question of accountability, of course, Lord Silkin was exonerated. But my point is that the circumstances in which the decision was not taken were not ventilated in the same way and therefore, in a sense, the wrong point was being discussed—at least from the point of view of my argument here.

But the most controversial issue is the advice of the Attorney-General. The Butler report has shown the many pressures on the Attorney-General—not only in this country but in the United States. I think I can safely say that in the case of Suez the wrong advice was given—or at least the wrong decision was taken—as a result of the Attorney-General's case. It is a problem. The case of Iraq involved issues of international law, which is a very specialist area, and the Attorney-General has his own expertise, which may or may not be in international law. It is not reasonable to put a very distinguished public man in such a dilemma. Is he a legal adviser—a public servant representative of the public interest—whose observations on disclosure are protected; or is he a Minister of the Crown and subject to the normal pressures for disclosure?

The idea that the Attorney-General is totally removed from politics—"a windowless monad", as my old friend Geoffrey Marshall said in one of his books—and completely sealed off from political obligation may be true, but it is very hard to convince the public. As the noble and learned Lord, Lord Falconer, said in this connection, it has to be seen to be true; it has to be seen that law officers are completely detached. It is not good enough to say, as Edwards says in his standard book on the Attorney-General, that we can rely on the character and personal integrity of all these admirable people. I am sure we can, but that is not the point. The point is the institutional arrangements, not the quality of the individuals concerned. They should not be in this situation. The kinds of circumstances in Iraq, the legality of the war, the treatment of British prisoners in Guantanamo and the bombing policy should be detached from political considerations.

In my view, there is much to be said for a law officer having the same degree of independence as the Governor of the Bank of England, who takes decisions about interest rates on professional grounds completely detached from political involvement. We should of course have a voice in Parliament but, in my view, that should be someone else. There is no time to discuss this, but I suggest that a department of justice or a Minister of justice, as obtains in many other countries, including the United States, would be far better.

The Attorney-General has an ambiguous role which is hard to sustain. In my view, it is another argument for an unwritten constitution, and the whole course of the debate has confirmed my view. In the process of it we have had a very distinguished man and an historic office—which goes back to the reign of Edward I—unfairly tainted by dragging them into the most catastrophic area of British foreign policy since the time of Suez.

Photo of Lord Campbell of Alloway Lord Campbell of Alloway Conservative 12:57 pm, 15th December 2005

My Lords, like other noble Lords, I thank the noble Lord, Lord Rodgers of Quarry Bank, for introducing the debate. I agree with everything that has been said by noble and learned Lords on both sides of the House. In particular, I agree that this is not an occasion to impugn the integrity of the noble and learned Lord the Attorney-General. I accept, certainly, that the essence of this is accountability, as has been explained. I am totally at a loss to understand the tutorials of the noble Lords, Lord Morgan and Lord Goodhart, as logical presentations leading anywhere.

This is also an occasion to thank the noble Lord for giving the House an opportunity to consider the exercise of the Attorney-General's supervisory role over those serving in our Armed Forces, on armed peacekeeping, who are charged with murder. And why? Because the morale of the Armed Forces has been greatly affected. Problems of retention and recruitment have been engendered under this regime, which will continue until about 2008 when the Armed Forces Bill takes effect.

What must be done to restore morale? As an immediate priority—and this in the wake of a series of these trials, after unjustified and unacceptable delay, on flawed evidence on which conviction could not be sought—consideration may well be given as to whether charges should be laid, and trials by court martial should now ensue, on independent advice as to the prospect of success on the quality of the evidence, and whether trials under the civil jurisdiction should now be entrusted to the High Court on the application of the Attorney-General.

Aspects of the extant supervisory regime, in which absolute discretion rubs shoulders with natural justice as reflected in the ECHR, have afforded this devastating loss of morale. What happens is that a resort to trial under civil law is granted by the Attorney-General within the closet of absolute discretion without notice, reasons, or any means of objection and is not open to challenge in the courts. If this role of the Attorney-General were to be exercised on application to the High Court, there would not only be a judicial determination of what is in the public interest as distinct from what could appear to be in the political interests of government; there would also be a judicial determination as to the quality of the evidence on which conviction is to be sought. Directions would be given by the High Court not only as to trial but for the avoidance of delay.

Urgent steps must be taken to instruct independent lawyers to examine all cases as to the questions to be asked on interview; to the charge; and to the sufficiency of the evidence. Under the extant regime, advice is given by the Attorney-General to the Armed Forces prosecuting authority not to arrange for trial in such cases by court martial, but in the civil courts. Why is such advice given? Is it given at the instigation of the Attorney-General, or at the request of the MoD at one of their regular meetings? It remains a matter of concern to our Armed Forces, that the MoD sought resort to the civil jurisdiction for reasons extraneous to justice, to placate pressure groups concerned with the death of Iraqi civilians and to safeguard the military justice system as reported in the Official Report on 14 July 2005, col. 1222.

Does it really make sense that there should be this close working relationship between the Attorney-General and the legal services of the MoD under which resort to the civil jurisdiction is sought and granted? Would it not be far more satisfactory if application were made to the High Court, which either granted or refused the application?

Photo of Lord Astor of Hever Lord Astor of Hever Spokespersons In the Lords, Foreign Affairs, Spokespersons In the Lords, Defence, Spokespersons In the Lords, International Development, Deputy Chief Whip, Whips 1:05 pm, 15th December 2005

My Lords, I too am grateful to the noble Lord, Lord Rodgers of Quarry Bank, for initiating this debate. It gives me the opportunity to say something about the role of the law officers as I have observed it in practice, in relation to one particular area; namely, military justice, which my noble friend Lord Campbell has just spoken about.

Let me say bluntly that I am unhappy about what I have encountered. It leads me to believe that, in this particular respect, the role of the law officers should be much more clearly defined and that it should be clearly restricted. I am in no way attacking the integrity of the Attorney-General. However, I am concerned that in pursuance of what seems to be a novel view of his powers, the noble and learned Lord has removed a case from the military justice system and referred it to the CPS. Is this not a policy of de facto extension of the law by executive decision? May I join my noble friend Lord Campbell and ask the noble and learned Lord, Lord Goldsmith, on what criteria does he base his decision that it is in the public interest to ventilate a military case in the civil jurisdiction? What are his criteria for defining when a case is exceptional and merits transfer?

Moving the Az Zubayr case to the civilian jurisdiction and some other cases that have taken place in the military jurisdiction has caused consternation in the Army. Many officers, NCOs and soldiers are leaving the Army as a result. More are thinking and talking about doing so. My noble friend Lord Campbell rightfully mentioned morale. Morale has apparently now fallen so low that the Secretary of State has had to visit Basra in an attempt to stop the rot. Senior army officers are angry at what they see as politically motivated show trials, orchestrated long after the event, from the comfort and safety of their offices by people with no experience of combat.

Soldiers are trained to kill. In Iraq, if a soldier waits a second too late, he may be killed; if he shoots a second too soon, he may now be prosecuted. Most of the time a soldier does not know who the enemy is and where the next bullet is coming from; an innocent situation will suddenly explode in his face. Take a British soldier, put him into body armour in 58 degrees centigrade and have mobs throw bricks and petrol bombs and then marvel at his restraint in not opening fire. If we subject the same soldier to a life without routine, working 18 to 20 hours a day, unable to sleep because of the heat during his four hours off, if we expose him to a significant casualty rate, continual, yet random, small-arms fire; attacks involving mortars, rocket-propelled grenades and improvised explosives the real question should be: how is it that the junior leadership can maintain such professionalism?

Soldiers are therefore entitled to expect better legal and operational clarity from the Government that sent them to war. My noble and learned friend Lord Mayhew used the word "fairness", which seems appropriate in this context. This Government seem to have lost touch with common sense. Between 1 November last year and 31 October this year 856 cases were referred to the Army Prosecuting Authority. This is political correctness gone mad. No one in this House excuses criminal acts. Soldiers guilty of misconduct, under arms must not be immune from justice. But if justice is to be done, it must be administered at the highest standard and without delay. It is disgraceful that the soldiers of the Royal Tank Regiment have waited nearly three years to clear their names. It seems to me that the noble and learned Lord's interference in that case has caused more delay.

I noticed on the criminal justice system website that the Attorney-General is responsible for the trial management programme under which realistic court dates are given and stuck to. Will the noble and learned Lord use his statutory powers of superintendence to reduce those unacceptable delays? The noble and learned Lord the Attorney-General has superintendence over the three service authorities. What does superintendence mean? How does it differ from ministerial responsibility? Why have Her Majesty's Government not used the Armed Forces Bill to define in statutory terms the role of the Attorney-General in relation to the service prosecution authorities, in the same way as it is defined by statute in relation to other authorities? What part will the noble and learned Lord the Attorney-General play when the Bill comes to this House, both in debate and behind the scenes?

In correspondence with the former Secretary of State for Defence, the noble and learned Lord expressed concern at the quality of military investigations. Clearly, neither the service police nor the prosecuting authorities are sufficiently funded to perform the duties that they are expected to undertake. Do the noble and learned Lord's superintendence powers give him the authority to do anything about that apart from writing to the Secretary of State for Defence? To whom is the Army Prosecuting Authority answerable and how is its performance measured?

We gather that defence Ministers, against their better judgment, are being persuaded that we do not need to legislate for Armed Forces discipline every year. The Secretary of State for Defence confirmed in another place on Monday that the discontinuance of that rule was not proposed by the MoD, the Treasury or the Whips' Office. Is that pressure coming from the Attorney-General's office? We sympathise with the MoD; we must give our Armed Forces full parliamentary support.

Finally, will the noble and learned Lord confirm that in his legal opinion the rules of engagement, and the soldiers' cards derived from them, conform with international law as it stands?

Photo of Lord de Mauley Lord de Mauley Deputy Chief Whip, Whips, Spokespersons In the Lords, (Also Shadow Secretary of State for Scotland - Not In Shadow Cabinet) 1:12 pm, 15th December 2005

My Lords, like my noble friends Lord Campbell of Alloway and Lord Astor of Hever, I want to focus on the increasing involvement of law officers in the application of the civil justice system to the military. I thank the noble Lord, Lord Rodgers of Quarry Bank, for introducing this debate and for giving me the opportunity to contribute. I declare an interest and speak as a recent commanding officer of a territorial regiment. Indeed, a year ago, the day before yesterday, I returned from a visit to Iraq to see my soldiers on operations—territorial soldiers who were involved first hand in combat with the enemy there. I also make it my business to maintain close contact with officers at command level.

I and many others have spoken in your Lordships' House of the case of Trooper Williams. That case was deeply worrying to many of us as it demonstrated a complete lack of understanding by government of their responsibilities for their soldiers—soldiers of whom they were asking more than many governments have asked in recent years. Although it may have been a senior officer who recommended that the Williams case be passed into the civil justice system, it was the Attorney-General who made the decision; furthermore, it was clearly the atmosphere created by that senior officer's political masters that put him in a position in which he felt he had no option but to recommend as he did.

I want to associate myself with the words of my noble and learned friend Lord Mayhew when he said that he had complete confidence in the integrity of the present Attorney-General. It is not his integrity that I question. I want to repeat his words in a letter to my noble friend Lord Astor of Hever, following the Williams case, explaining his actions. He said:

"My decision was purely based on the interests of justice and the merits of the matter".

The Government's idea of "justice" seems to be the justice of making an innocent man wait two years with a charge of murder hanging over him. Their idea of the "merits of the matter" is the merits of a case in which the CPS decided to offer no evidence when it realised it might lose.

While our Government concern themselves with the human rights of the man Trooper Williams shot—who had been transporting weapons likely to be used directly against our forces—they were apparently unconcerned with the human rights of their own citizen, Trooper Williams, which were clearly infringed by their actions. I say that, first, because his case had been dismissed by two separate commanding officers both of whom had taken detailed legal advice and were subsequently proven correct, and, secondly, because of the awful period of waiting that Williams was put through before finally getting justice. Justice delayed, it is said, is justice denied.

The case of the five men from the Royal Tank Regiment waiting to know their fate over the incident at Az Zubayr is a further damning indictment of this Government's dithering and weak-mindedness. Those soldiers are still waiting, over two years after the incident, to hear their fate.

In the Army today, the issue of rules of engagement is highly contentious. They must be simple because the situations under which they need to be followed are invariably confusing and frightening. The soldier must know those rules instinctively, and that in following them he will without question keep within the law. The Williams case knocked soldiers' trust in the rules of engagement and in the support they will get from the chain of command, and has made every commanding officer's job more difficult. Without complete trust in the rules of engagement and in the unflinching fairness of the justice they will face, soldiers may hesitate in the face of the enemy, and those they are trying to protect may die.

Yet further misguided progress is being made in the Northern Ireland (Offences) Bill, under which it is now proposed that our own people may be subjected to trial for their actions under orders in the name of their country many years ago, while the terrorists who threatened them and murdered members of the civilian population are to go free. The world has gone mad, and this Government are leading the way. Judgment is, of course, needed. There are some valid cases; for example, bullying and violence against prisoners is unforgivable. But that very judgment is notable by its absence.

It is clear that the senior army command finds itself now in an extremely difficult position, constantly looking over its shoulder and trying to second-guess what its political masters want of it. The British Army follows a principle that it calls mission command; put simply, that means "train your soldiers at all levels well, then tell them what you want them to achieve, not how to do it". Mission command requires mutual trust between commander and subordinate. There is now a clear feeling that the Government do not sufficiently trust the military chain of command.

That has led to a lack of confidence among the senior leadership. Witness first the letter sent from the Adjutant General to the Chief of the General Staff to try to get Trooper Williams's case transferred to civil jurisdiction. That betrayed a profound insecurity among senior commanders about the lack of government support for the preservation of the military justice system; and witness secondly the new Armed Forces Bill, which removes powers from commanding officers to deal with the more serious cases, which they have proven themselves well capable of doing since the Army Act 1955, of which a recent example is the Williams case. Why undermine its position by changing the rules unless you are not prepared to trust it?

War—and peace making—is a dirty business. It involves the controlled use of force to achieve an aim. If you want the best people to do your dirty work, you must maintain an environment in which they can do that properly, without constantly looking over their shoulders. If you do not, when you need them most, you will find that they have quietly left to pursue an easier life in the civilian world, leaving behind an army of bureaucrats.

This is a Government who, some have suggested, wanted a war because they had seen what the Falklands had done for the Conservatives. It was a hugely inexperienced decision, and it was, as explained by Colonel Tim Collins on BBC's "Newsnight" last night, compounded by a failure to plan for the aftermath, despite having had a dress rehearsal in Kosovo.

Now that they have made such a mistake, they are failing to accept their responsibilities to the people who, in good faith, waged their war. This is undermining the system of military discipline and justice which is absolutely essential to the leadership of soldiers both in war and in peace.

Those who have at heart the interests of our Armed Forces, our country and, yes, of the government want to see a change to a government who accept their responsibilities for their actions. They, and the law officers in particular, can only do this by supporting—rather than undermining—the military justice system and the chain of command.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General, Law Officers (Constitutional Affairs), Advisory Team On Legal Matters, Non-Departmental & Cross Departmental Responsibilities 1:20 pm, 15th December 2005

My Lords, I, too, express thanks to my noble friend Lord Rodgers of Quarry Bank for introducing this debate. I have been saddened that, save for my noble friend Lord Goodhart, the debate has not by and large led to any suggestion of change. Yet the office of Attorney-General has evolved through history, and there is no reason to assume that it has reached perfection in the body of the noble and learned Lord, Lord Goldsmith, and will not evolve further. History, as your Lordships are only too well aware, has not prevented the radical reform of the position of Lord Chancellor.

The position of the Attorney-General has not been popular. It was written at the beginning of the 19th century that:

"Of all offices in the gift of the Crown, that of Attorney-General is perhaps least to be coveted; for whether the government be popular or unpopular, the person filling that place can scarcely avoid being the object of general dislike".

Contrasting the role of the Attorney-General with that of the Solicitor-General, the author went on to say:

"The Attorney-General stands forward, almost alone as the public spy, informer and prosecutor . . . and the wrath of the parties and the dislike of the nation at large are levelled principally against him whilst the Solicitor-General fights under his shield and sometimes appears not to enter into the contest at all".

It has not been the easiest of roles to fulfil. There has to be a tension between the duties and responsibilities owed by the individual who has held that position to the law, to the courts, to the executive, to Parliament, to his constituents—if he is a Member of the House of Commons—and to the political party to which he belongs. It illustrates the quality of the distinguished speakers in this debate that they have all walked that tightrope successfully.

Reference has been made by my noble friend Lord Rodgers and others to the withdrawal of the prosecution against the communist trade union leader, Mr Campbell, who was charged with inciting mutiny in the Army, and how that led to the fall of the Labour government after a censure Motion. Since that time, the Attorney-General has ceased to be a member of the Cabinet and has sought to be what Lord Shawcross, described as "aloof and independent". There are three main aspects of his position. In an article published a year or two ago, Diana Woodhouse said:

"At times the Attorney General is required to represent the government interest and at times the public interest. These are not always the same, as indicated in Questions of Procedure for Ministers, which states: 'In criminal proceedings the Law Officers act wholly independently of the government. In civil proceedings a distinction is to be drawn between proceedings in which the Law Officers are involved in a representative capacity on behalf of the Government, and action undertaken by them on behalf of the general community to enforce the law as an end in itself'".

I will look at those aspects of the role of the Attorney-General, and suggest the possibility of change. My suggestions do not have the imprimatur of the Liberal Democrat assembly, meeting at some seaside resort; they are largely my personal views.

The departmental responsibility for the Crown Prosecution Service, other prosecuting bodies and the Treasury Solicitor, to ensure they deliver an effective and efficient service to the public and are properly resourced to perform their functions, draws the Attorney-General into areas of political controversy about the quality of the criminal justice system, and also into competition with other departments for cash. It is essentially an administrative role. I suggest that it is a significant area of administration which should be handed over to a Minister of justice—or whatever name one seeks to call a Minister; perhaps even Lord Chancellor in the current form—who is directly accountable to Parliament, as the noble Lord, Lord Morgan, said. I entirely agree with the noble and learned Lord, Lord Mayhew of Twysden, that such a Minister of justice should be co-operative with but completely independent of the Home Secretary and the Home Office, so that the administrative function could be put under a Minister directly accountable for administrative functions and for raising cash.

The guardian of the public interest aspect is a quasi-judicial role which ought not to be influenced by political considerations at all. Of course we all know that there have been controversies over prosecutions in the past. I mention them without seeking to say on which side of the argument I would have been or am, but your Lordships will recall Sir Michael Havers—as he then was—in 1975 attracting a great deal of criticism for his refusal to prosecute companies that broke the oil embargo in Rhodesia. On the other hand, in the 1980s he attracted public criticism for his prosecution of Clive Ponting in relation to his comments on the sinking of the "Belgrano". I suggest that decisions as to criminal prosecutions should be removed entirely from the political arena, so that they cannot be seen to be subject to political influences, and placed squarely into the hands of an independent Director of Public Prosecutions who does not change with a change of government and is not subject to dismissal by the Prime Minister in a government reshuffle. To that person would come an enhanced role: the consent to prosecution should be transferred, as should the responsibility for intervening in private prosecutions or for entering a nolle prosequi where it is appropriate.

There are other government prosecutions which should be under the control of the Director of Public Prosecutions as an independent figure. The noble Lords, Lord Campbell of Alloway, Lord Astor of Hever and Lord De Mauley, have spoken of soldiers serving in Iraq. As noble Lords may know, I have an involvement in those cases and am therefore constrained from saying anything about them. I can say that I do not think there should be pressure in Parliament, one way or the other, upon the Attorney-General as to whether they should be prosecuted. It should be an independent decision taken by a Director of Public Prosecutions. He should be answerable for his position to that same Minister of justice, who can be accountable to Parliament.

I do not think that the Attorney-General is particularly accountable to Parliament, as it happens, in criminal prosecutions, because if the case is proceeding he will always say "It is sub judice, and I cannot discuss it". If the case has been concluded, then, as in the Williams case to which noble Lords have referred, the Attorney-General says:

"That was my decision. It was a decision taken quasi-judicially, and that is it. You can criticise it if you like, but that is as far as I am going to be accountable for it".

Of course I am not referring personally to the noble and learned Lord, Lord Goldsmith, but that is what every Attorney-General does in criminal prosecutions.

There is a large area where the Attorney-General makes decisions in the public interest which may have a strong political flavour: the protection of the courts through contempt proceedings, the protection of public rights through relater actions, in injunctive proceedings and so on. Here he exercises his own discretion which is not reviewable by the courts. For that area, it is right that the Attorney-General—the person in charge of those decisions—should be both a lawyer and a politician and that he should be personally accountable for the exercise of those discretions to Parliament, probably in this House as it is constituted. There have been controversies about the exercise of the injunctive power and reference has been made by the noble Lord, Lord Morgan, to the Crossman diaries case and by the noble Lord, Lord Armstrong, to Spycatcher.

Finally, on the question of confidential advice to the government, the Attorney-General stands as the head of the Government Legal Service which proffers independent advice to government Ministers. It is sought and given on a confidential basis subject to legal professional privilege. Surely, therefore, it is appropriate that the head of the structure should also be a civil servant, independent of government. In the Matrix Churchill case, the noble and learned Lord, Lord Lyell, was concerned to act on advice given to him by civil servants; I will not go into the controversy around that. But the controversy over the advice on the Iraq war depends on an implication, surely unjustified, that the Attorney-General was put under political pressure to structure his advice in such a way as to give cover and legitimacy to the Iraq war. No doubt it is unfair, but I suggest that the public perception is that he is "one of them". What happens is that the Government say, "We're acting on legal advice. We can't reveal it" and they deflect responsibility and shelter behind the shield of the Attorney-General who is not permitted to reveal his advice.

I have suggested a certain number of possible routes to change the role of the Attorney-General, to deal with the functions in a different way and I again thank the noble Lord, Lord Rodgers, for giving me the opportunity of so doing.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, House of Lords, Spokespersons In the Lords, (Assist the Home Affairs Team) 1:32 pm, 15th December 2005

My Lords, I, too, thank the noble Lord, Lord Rodgers, for giving your Lordships' House an opportunity to debate this important issue today. As I understand it, the submission of the noble Lord, Lord Rodgers, together with those of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, is that there is a fundamental conflict between the independence of the Attorney-General and his or her accountability to Parliament. With great respect to those noble Lords, I suggest that there is a misunderstanding about the nature of that accountability.

As has been said by a number of your Lordships, the Attorney-General has fundamentally two roles. First, he supervises the prosecutorial service and is responsible to Parliament for that. Secondly, he is responsible for giving independent legal advice to the executive. In being accountable for his supervisory role with respect to prosecutions, he is not accountable for the exercise of his prosecutorial discretion. He is accountable for the independence of his exercise of the prosecutorial discretion. That is the essence of his accountability. Parliament is not asking him to be responsible for the advice that he gives: it is simply requiring him to act independently.

That applies equally to his role as legal adviser to the government. Parliament is not requiring the Attorney-General to be responsible for the content of that legal advice. He gives that advice independently. What he is accountable to Parliament for with respect to that function is his independence in giving it. Parliament rightly requires the Attorney-General to be independent, but has no right whatever to require the Attorney-General to exercise his discretion in a certain way. In my submission, in both those cases accountability underpins the independence of the Attorney-General; it does not undermine it. At the same time, it enhances the legitimacy of the role.

I respectfully suggest to the noble Lord, Lord Rodgers, that his mistake—I apologise to him for suggesting that he has made a mistake in this case because he so rarely makes mistakes—is that he has not understood the role of constitutional conventions in relation to the relationship between the Attorney-General and Parliament. The noble Lord gave an illustration of a Russian visitor. What was missing from the noble Lord's explanation to the Russian visitor was the role of constitutional conventions—which guarantee the independence of the Attorney-General. We do not need these conventions to be written down in law because we all understand them. Indeed, every speaker has recognised the unimpeachable integrity of the present Attorney-General—a quality that has existed in all the Attorneys-General I can remember.

I have a gentle but nevertheless relevant criticism of the Liberal Benches in that noble Lords on the Liberal Benches made exactly the same mistake in relation to the role of the Lord Chancellor. They thought, "Here is a personage who combines a legislative, executive and judicial role all in one. That can't respect the fundamentals of the doctrine of the separation of human rights". But it did because of constitutional convention.

I now turn to that aspect of the Attorney-General's powers which relate to military issues—which was mentioned earlier in the debate most effectively by my noble friends Lord Astor of Hever and Lord De Mauley. My starting point in these remarks is an Answer by the noble and learned Lord, Lord Goldsmith, to a Question posed by my noble friend Lord Astor of Hever about the transfer of a case from the military prosecutorial hierarchy to the civil prosecutorial hierarchy. The noble and learned Lord said:

"I have ministerial superintendence of both the Crown Prosecution Service and the three Service Prosecuting Authorities. In the case of the CPS, the role is statutory; in the case of the Service Prosecuting Authorities, it is non-statutory . . . Where an offence alleged to have been committed by a serviceman overseas is triable in either the court martial or the civilian courts here, it is ultimately for me to decide, as part of my constitutional and superintendence roles, whether the case should be dealt with in the military or the civilian system".—[Hansard, 6/12/05; WA 89.]

What authority does the noble and learned Lord have for making that statement? Is it made on a legal basis or is it based on the constitutional convention? If it is the latter, when was it established? Can the noble and learned Lord tell us which previous Attorney-General first asserted that this power was his?

It is clear that supervision entitles the noble and learned Lord to superintend the exercise of discretion by someone else, but it does not entitle the noble and learned Lord to substitute his own discretion for theirs. It certainly does not entitle him to exercise an executive role.

In the Gower-Hammond report at paragraph 9, the legal secretariat to the law officers highlighted the nature of the Attorney-General's superintendence. It states that the task of the Attorney-General in relation to the senior prosecutorial authorities, when his attention has been drawn to a problem and his advice sought on,

"significant features of potential interest or sensitivity" and on,

"matters of legal novelty and legal and factual difficulty" is to give advice and guidance. It says,

"This process of consultation will enable the Attorney-General to be consulted and to give advice and guidance on some difficult areas of the law.

There is nothing there about the exercise of prosecutorial discretion, let alone actually taking decisions about a prosecution. In my submission, the noble and learned Lord, unless he has a better explanation that the one he has given so far, does not have the constitutional power to transfer cases from the military prosecutorial hierarchy to the civilian prosecutorial hierarchy.

I have one further observation about the exercise of his power: in a Written Answer on 10 November in your Lordships' House, in relation to the referral to the CPS of the RTR soldiers, the noble and learned Lord said:

"I considered the matter and with the agreement of APA and CPS, I decided that the case should be referred to the CPS because in the circumstances of the case, while there is no suggestion that the court martial would not deal with it impartially, justice would be seen to be done by ventilating the issues in the civilian courts".—[Hansard, 10/11/05; col. WA 111.]

What on earth does "ventilating" mean? They could equally well have been "ventilated" in a court martial. Courts martial are covered by the press, and there is no reason why proceedings in a court martial should not be equally well "ventilated" as they are in a civilian court. Anyway, "ventilating" is an empty explanation for the exercise of this discretion that the noble and learned Lord thinks he has, although I doubt whether he has it.

What concerns me most about the way the noble and learned Lord has exercised his discretion in these cases is a good way of concluding my intervention. There is a big difference between a soldier committing an alleged offence while taking decisions in operational circumstances and a soldier committing an alleged offence in non-operational circumstances. Where offences are alleged when a soldier is on operational duty, the circumstances he faces are very different from those he faces when he is acting off-duty. That factor ought to be taken into account when one considers whether the military prosecutorial hierarchy or the civilian prosecutorial hierarchy is the appropriate route down which to go.

Photo of Lord Goldsmith Lord Goldsmith Attorney General, Law Officers' Department, Attorney General (Law Officers) 1:43 pm, 15th December 2005

My Lords, I start by congratulating the noble Lord, Lord Rodgers of Quarry Bank, on initiating this debate, and by thanking him for his choice of topic. I am also grateful to him for his courtesy in letting me know in advance the substantial issue that he wanted to raise.

I am glad my noble and learned friend and fellow law officer, the Advocate-General for Scotland, has been able to join me on the Front Bench for this debate. She is the first holder of this office, created at the time of the devolution settlement. She works closely with me in advising on legal issues as they affect Scotland, and, like me, has a statutory role in the operation of the devolution settlement under the Scotland Act. I very much welcome her advice, and hope that noble Lords would agree that having someone able to consider matters of law particularly pertinent to Scotland is an advantage.

To answer the intervention from the noble Lord, Lord Maclennan, who is not in his place, the Lord Advocate, now a law officer of the Scottish Executive, is in fact someone who sits in the Scottish Assembly, so there is no difference between the United Kingdom and Scotland there.

This has been a thoughtful and stimulating debate. I am genuinely grateful to all noble Lords who have contributed. We are particularly fortunate to have heard from noble Lords who have themselves held office as law officers, but the contribution of all noble Lords is much appreciated.

I have been privileged to hold the office of Attorney-General since June 2001. It is, as has already been said, an office in which the worlds of law and politics intersect. A range of views has therefore been expressed today on the role of the law officers, and how best this should be exercised. I want to start by saying how I see how I should exercise my role.

The overriding principles by which I have sought to do my job are these: to give legal advice and take decisions based on a scrupulous approach to the law and to the evidence; where I am exercising my public interest functions, to act on the basis of an objective, dispassionate assessment of the public interest, without regard to party political considerations; and to act independently, fairly and with accountability. I agree wholeheartedly with what the noble and learned Lord, Lord Mayhew of Twysden, said about the significance of fairness in all that the law officers do. Those are not principles for which I take any credit. I believe they are the principles upon which my predecessors have consistently acted in the past. Indeed I often ask myself, when facing a difficult decision: how would one of those predecessors—some of whom I am privileged to see in this Chamber today—have dealt with that issue?

One of my predecessors, Sir Robert Finlay, said at the beginning of the last century, when speaking of his responsibility for prosecution decisions:

"In discharging that duty, the Attorney-General is exercising a function of an almost judicial nature . . . In the discharge of that duty, the Attorney-General . . . will be actuated by no respect of persons whatever".

I agree, and seek to follow absolutely that approach. It is inherent in this role that it sometimes falls to me to take controversial or unpopular decisions. One academic writer put it this way:

"It would seem that where politically contentious decisions are concerned, the Attorney-General is unlikely to escape criticism whatever [decision] he makes".

I make no complaint about that—it goes with the job. When confronted with decisions, there is only one course to take: to ignore the political clamour and the media comment, and try scrupulously to reach the right decision on the law and on the evidence. That is the basis upon which I have sought to operate, as I apprehend all my predecessors have.

Turning to the principal thesis of Lord Rodger's argument, what are the arguments for and against having law officers who are members of the Government and who combine, as he puts it, the role of lawyer and politician? This something to which I have given much thought. My own judgment is that the advantages of the current system outweigh the disadvantages. I am reinforced in that belief by having heard support for that proposition from three former Attorneys-General—who have between them enormously long experience of the law officers' roles; although I have not counted them up, it is a substantial number of years—as well as from a former Cabinet Secretary and others in this House. That those who have been most closely associated with the work that is done see benefits in the present system seems to me to be a most important consideration.

Like the noble Lord, Lord Morris, I have reached the conclusion that it would not be right to turn this into a job for a paid official. To put it in the words of the noble and learned Lord, Lord Mayhew, the public interest is better served than by any other alternative.

I have listened with great care to the different points—and, they will forgive me for saying, the not unanimously held points—in the three important speeches made from the Liberal Democrat Benches. I notice that the noble Lord, Lord Thomas, seemed to believe not so much that some of the things that I do should not be done by someone in this House, by someone who is accountable to this House, but perhaps that person should be a different person or have a different title. I was interested in the comments of the noble Lord, Lord Goodhart, as well as those of the noble Lord, Lord Rodgers, as he expanded his argument.

I wish to develop the three factors that to my mind lead to the conclusion that the present system is in the public interest. First, law officers as Ministers have a key role in upholding the rule of law within government. Their advice carries greater weight because they understand and are part of the political process. Secondly, there are advantages in having law officers in both Houses of Parliament. We are answerable and accountable to Parliament for our work and are able to assist Parliament itself. The third consideration is that, as a Minister, I have been able to play a full role in the criminal justice system, particularly in reforming the prosecution service, which, as an outsider, I would not have been able to do. Let me develop those points within the time permitted.

I will deal first with the law officers' role as legal advisers to government. Of course only a small proportion of the legal issues that face Government are referred to the law officers. But by definition these are typically the issues of the greatest legal complexity, political sensitivity or carry the most far-reaching implications. I have sought to operate in that field in accordance with the principles that, first, my advice should be independent and impartial; secondly, that my approach should be constructive; but thirdly, that I should be prepared to give unwelcome advice and to stand firm where that is called for. As the noble Lord, Lord Armstrong of Ilminster, said, legal advice is not a matter for collective responsibility, but the decision of the law officers.

I conceive it as my job to help the Government achieve their policies, but only in a lawful and proper way, and where necessary advise against a particular course where it has fatal legal flaws. In that way the law officers are upholding their function of upholding the rule of law.

Discussion of the law officers' advisory role is complicated by the fact that their advice, like any other legal advice, is privileged and confidential; and remarks have been made about that today. One aspect of my advice—that in relation to the legality of military action in Iraq—has been the subject of particular comment, but as all noble Lords have accepted, for which I am grateful, that my integrity is not in question in any sense in this debate, there is no need for me to go over old ground as to why that advice was independent and genuinely my view.

There can be no greater responsibility for any lawyer than to have to take the decision on whether it is lawful for his country to go to war. That raises an important general point—the fact that the law officer plays that role shows the importance attached to the rule of law.

Are the law officers then in a good position to give legal advice to their colleagues? In my view they are best placed to give that advice, precisely because they are in the Government and understand the system of government and process of policy formulation which precedes the request for advice.

Occasionally, the law officers say no. That undoubtedly happens. Inevitably, those are not the occasions that tend to see the light of day outside Government, but they represent an important part of our function of upholding the rule of law. Would such decisions be better taken by someone who is a member of the Government or by someone who is outside? The noble and learned Lord, Lord Archer of Sandwell, in the same article, I think, to which the noble Lord, Lord Rogers, referred, said that this arrangement regarding the Attorney-General being a Minister is probably in the interests of the rule of law. Advice from a colleague in Government is less likely to be treated as impatiently as advice from a civil servant. Another writer put it more briefly by saying that Ministers are more likely to accept unwelcome advice because it comes from someone who they think is on their side, rather than someone who is perhaps there to impede the policy. I would strongly reject any suggestion that those inside Government or business are incapable of giving the most sincerely independent legal advice.

There are other important ways in which the law officers help to uphold the rule of law within government. We play a key role in relation to proposed government legislation. We are members of the Cabinet committee on the legislative programme and see all draft Bills. Although we are not of course responsible for the detailed content of every Bill, we look particularly closely at those questions which raise issues of legal policy or legality. Parliamentary Counsel can and do refer to us questions which, in their view, raise such issues.

There are other issues where my role as a law officer has been influential in upholding what I would regard as the rule of law, such as the former British detainees at Guantanamo Bay, which has been referred to. I took the role of negotiating for the Government. There were difficult issues of law and security. I am personally convinced that it would not have been possible to handle those discussions in the way I did, had I not been, and been seen to be, a member of the Government. Another example was the review of cases of infant deaths following decisions by the Court of Appeal in 2003—the convictions of Sally Clark and Angela Cannings, which led to my establishing a review which looked at nearly 300 cases, and which caused some to be referred to the Court of Appeal.

The second issue is the question of accountability and the law officers' role in relation to Parliament. There is a law officer in this House. Like the noble Lord, Lord Goodhart, and the noble Lord, Lord Clinton-Davis, I regard that as an advantage. Regardless of which House we belong to, we take our responsibilities and accountability to Parliament very seriously.

It goes beyond some of the points that have been made in this House. In a typical year the Solicitor-General and I answer some 400 Parliamentary Questions and reply to some 250 letters from Members of Parliament or noble Lords. We make ourselves available to Members of either House who wish to raise particular issues with us. Only yesterday, the Solicitor-General and I had a series of meetings with Members of Parliament, principally from Northern Ireland, concerning a particular prosecution last week.

While there is a need to avoid any conflict in the advice we give to government, that does not prevent us from giving advice and assistance to Parliament when it arises. For example, noble Lords may recall that I participated in a debate on the Children Bill, on the law in relation to smacking; I have given evidence to the Procedure Committee on the sub judice rule; I have given evidence to the committee on the Assisted Dying for the Terminally Ill Bill to describe and explain the law relevant to that; and, on occasion, I advise the Speaker of the House of Commons on matters of privilege and procedure, for example. I want to underline one point which perhaps is not obvious. The fact that I am a Member of this House, and very proud to be so, does not prevent me from assisting Members of another place, although I have no right to speak in that House.

Thirdly, I turn to the independent public interest role. As noble Lords have said, that extends beyond areas such as decisions or superintendence of decisions as to prosecution. Unduly lenient sentences were referred to by the noble and learned Lord, Lord Lyell of Markyate. That is an important and onerous responsibility, as the noble and learned Lord, Lord Morris, said, too. There are many examples, yet in all of these cases, we must act with scrupulous fairness and robust independence.

I want to say something about the prosecution decisions, which were the principal subject of the interventions by the noble Lords, Lord Astor of Hever, Lord De Mauley, Lord Campbell of Alloway, and, to some extent, that of the noble Lord, Lord Kingsland. Let us be clear about the following point. It has been suggested in the past that some prosecution decisions have been politically motivated or driven by considerations of political correctness. Those suggestions are wholly without foundation. I have the highest regard for the professionalism and dedication of our Armed Forces. Nearly 80,000 men and women have served with the greatest distinction in the most recent conflict in which they have been engaged. But nobody would suggest that any of them are above the law. Where credible accusations of criminality are made, surely it is right that they should be investigated and, should the evidence so disclose, be prosecuted. Who takes these decisions? The decisions of the Army Prosecuting Authority are taken on objective consideration of the evidence which is provided by the special investigations branch of the Royal Military Police. Those decisions are not taken by those with no understanding of the reality of military life. The service prosecutors are members of the Armed Forces, with experience of active service. As superintending Minister, I am from time to time consulted about particular cases, but I have never instructed the APA to prosecute or not to prosecute a case. In recent observations, Major General Sir Michael Jackson has very clearly and categorically described even as calumny suggestions that any of the people who are involved in those prosecuting decisions have been motivated by thoughts of political correctness or anything of that sort.

I have corresponded extensively with noble Lords, particularly with the noble Lord, Lord Astor. I have offered at least twice to meet with him and at least once to meet with other noble Lords who are interested in this reply. I have answered a number of Parliamentary Questions. Time does not permit me to answer all the questions except one—that of the noble Lord, Lord Kingsland—but I am happy to re-offer that invitation to meet if it would be helpful.

The noble Lord, Lord Kingsland, asked about the statutory basis. There is concurrent jurisdiction in relation to certain cases, where the courts of this country have the right to try individuals for offences committed abroad. The House of Lords has made it clear that whether it should be the civil authority or the military authority is a matter for discussion, but that ultimately the decision rests with the civil authority, which for these purposes I am.

On criminal justice policy and the role of the prosecutor, I emphasise that I firmly believe that had I not been a member of the same Government as my colleagues, I would not have had the same success in obtaining resources for the prosecutors—they have been substantially increased—or new powers or responsibilities for them. Like others who have spoken, I would not want to see the prosecutors under the purely political influence of a Home Secretary.

This role has attracted controversy over the years. My noble friend Lord Morgan described some of those incidents, although he was wrong to attribute the Suez war to the Attorney-General. According to the Cabinet papers which have been disclosed, it was the Lord Chancellor of the day who gave the legal advice for that. We do not need to refight that battle.

I conclude. This debate has been very helpful. I hope that it would assist a Minister from Russia who asked the questions which the noble Lord, Lord Rodgers, amusingly put. Like others, I take the view that if he were to read this debate and the contributions from all noble Lords, he would not give at the end the answer which the noble Lord, Lord Rodgers, suggested.

Photo of Baroness Hooper Baroness Hooper Conservative

My Lords, the time allotted for this debate has now elapsed. Does the noble Lord, Lord Rodgers, wish to withdraw his Motion?

Photo of Lord Rodgers of Quarry Bank Lord Rodgers of Quarry Bank Liberal Democrat

My Lords, I would much prefer to precede it by thanking those who have spoken in the debate. There is no time to say anything else. I beg leave to withdraw the Motion for Papers.

Motion for Papers, by leave, withdrawn.