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The Solicitor-General: The hon. Gentleman asked whether the defence of necessity was disclosed at an early stage and therefore considered by those who had conduct of the prosecution. It is clear that it became evident at an early stage, if not from the outset, that it was a realistic prospect that Ms Gun might raise the defence of necessity. That was known and considered before the charge. Prior to the charge, the Shawcross exercise was undertaken. The Attorney-General has to consent to a prosecution going forward.
The hon. Gentleman asked why the evaluation had changed. That is a difficult question for me to answer as fully as I would like to. He will know from his experience
at the Bar that evidence comes and goes, and that a case has to be kept under constant review. If at any point counsel with the conduct of the case decides, on the balance of all the admissible evidence that might go to the proving of the charge or the rebutting of the defence, that there is no longer a realistic prospect of conviction, it is counsel's duty to make his view known that that is the case.The hon. Gentleman asked when the Attorney-General decided not to go ahead with the case, but I can tell the House that it was not decided by the Attorney-General. He was told of the view of Treasury counsel, with which the Director of Public Prosecutions concurred, relating to the lack of sufficiency of the evidence. The Attorney-General was told about, and agreed with, the view of Treasury counsel, but it was actually the decision of the prosecuting authorities, not the Attorney-General.
I ask the House to understand the separate nature of the Attorney-General's discussions with the Foreign Secretary. The Shawcross exercise means that the Attorney-General will consult his ministerial colleagues in deciding, as part of his consideration, whether a prosecution is in the public interest. He will do that because the prosecution might affect the Departments for which they are responsible.
That isquite separate from the issue of evidential sufficiency. As the Attorney-General explained in the other place this morning, the discussions that he had on 14 and 24 February were about the evidential questions. As a matter of courtesy, he was reporting to the Foreign Secretary on the evidential issues that had arisen, and discussing them with him. He was not asking for the Foreign Secretary's views on whether the prosecution was still in the public interest, nor was he giving the decision on the sufficiency of evidence to the Foreign Secretary. He was not consulting the Foreign Secretary; he was simply explaining to him, and discussing with him, the evidential position. No defence statement had been served—this brings us back to the issue of the defence of necessity—but obviously counsel for the prosecution, and the prosecution as a whole, are under a duty to anticipate what any defences might be.
The hon. Gentleman asked whether any request by the defence for the Attorney-General's legal advice to the Prime Minister on the legal basis for the use of force in Iraq would have been covered by privilege. That question did not arise, and therefore the question of whether the Attorney-General had to decide whether he would claim legal privilege did not arise either, because the request for disclosure had not been made.
The hon. Gentleman asked about the future of section 1 of the Official Secrets Act. He asked whether it was now the case that no defence of necessity could ever be rebutted. All I can say is that before we rush to any conclusions about where this case leaves the state of the law, careful consideration must be given—and no doubt will be given—by the Home Secretary. It will be for him to come to the House if he has any views that he wishes to convey to it about the state of the Act. As for whether the prospect of a conviction receded because of the anticipation of public distrust of the Government—I think that that is what the hon. Gentleman was alleging—that was not an issue in relation to the discontinuance of the case.
The hon. Gentleman asked when the Official Secrets Act would be reviewed. I think that that is a matter for the Home Secretary. As I have said, in all cases in which there has been a significant event in the course of a prosecution, the implications for the substantive law that might arise from that prosecution are always considered. I said no more than that.
The hon. Gentleman asked whether the Government should waive confidentiality—whether either the Prime Minister or the Attorney-General should waive the normal rule, which is that legal advice to Government is confidential. He suggested that it should be waived. I remind him that because of exceptional public interest in the question of the legal basis for the use of force in Iraq, the Attorney-General did, on 17 March, set out the basis on which he believed in the lawfulness of the use of force in Iraq; and he was able to reaffirm this morning, in another place, that his opinion of whether his view of the law was right had not changed.
No doubt many people will have examined the law on the use of force, and, as we know from lectures and newspapers, many of them do not agree with the Attorney-General. I should point out that when the Prime Minister appoints the Attorney-General, he cannot shop around for legal advice. If the Attorney-General tells him that he cannot do something, he cannot do it. He is obliged to take the Attorney-General's advice: that is the basis and the nature of the appointment. Similarly, if the Attorney-General tells the Prime Minister that he is entitled to do something, the Prime Minister is entitled to rely on that, irrespective of whether many other people take a different view.
I realise that I have left many questions unanswered, but I can at least explain to the House what the Attorney-General's responsibilities are under this procedure, and make it clear that he fulfilled them with integrity.
Mr. John Burnett (Torridge and West Devon) (LD): I thank the Solicitor-General for giving me notice of her statement.
When deciding whether to proceed with a prosecution, the Attorney-General must be convinced first that there is a realistic chance of success and secondly that it is in the public interest to proceed. He believed that both conditions were met in this case. My understanding is that the evidential test was passed on the basis of Ms Gun's first interview. Despite what the Solicitor-General has just said, I am still not sure what has changed since that first interview, and what assessment was made subsequently to change the decision to prosecute.
The Solicitor-General has said that it was clear at an early stage that Ms Gun would raise the defence of necessity. I concede—and it is entirely proper—that we must safeguard our intelligence. The defence made a submission two days ago seeking disclosure of the Government's legal advice on the legality of the Iraq war, because it believed that unless the Government could prove they were acting legally, Katharine Gun had the defence of acting in the public interest. Yesterday, Treasury counsel informed the court that the prosecution was to be abandoned. The Solicitor-General will be aware that there has been considerable speculation that it was abandoned because the
Government feared that at the trial evidence would be adduced of the grave misgivings of many officials in a number of Departments of State about the legality of the war with Iraq. I respect both the Attorney-General and the Solicitor-General, but unless they put in the public domain, or submit to Lord Butler's inquiry, the compelling legal reasons for the withdrawal from the prosecution, we can only assume that the law officers have capitulated to the Executive, and have failed in their duty to the House and the country.
The Solicitor-General: I take exception to the suggestion that the Law Officers have done that, and that the Attorney-General failed to carry out his duties as he was required to in this matter. Let me say most emphatically that he did not. If the hon. Gentleman accepts what I said in my statement, he will agree that that is not what has happened.
The hon. Gentleman said that many officials had misgivings. That might well have been the case, but the question of whether the Prime Minister had a lawful basis for the use of force is one on which he takes the advice of the Attorney-General. It is not for him then to second-guess that by taking the view of many officials who have misgivings. The system has to run like that. I assure the House that the enabling that is conferred on the Prime Minister by the Attorney-General's saying that he can do something is matched by the Attorney-General's ability to tell the Prime Minister or his ministerial colleagues that they cannot do something. It works both ways.
The hon. Gentleman asked me whether there was a connection between the discontinuance of the case and the request for disclosure. I can reaffirm that the discontinuance was not connected to a request for disclosure of the Attorney-General's full legal advice or the anticipation of such a request being made. I hope that the hon. Gentleman will accept that. I may not have been able to answer many other questions that he would like to put, but I hope that he accepts that there is no connection between the anticipation of a request or the submission of a request for disclosure of the Attorney-General's advice on the legality of the war in Iraq and the discontinuance of this case.
The hon. Gentleman mentioned that the Attorney-General must consider two things when giving his consent to a prosecution under the Official Secrets Act: the evidential test of whether there is a realistic prospect of a conviction and the public interest test. I remind him of something that I know he knows, which is that the evidential test does not become a matter for the Attorney-General's consent. The evidential test remains the custody of the prosecution. Consent is a wider and different issue about the public interest. The evidence was regarded as sufficient and the Attorney-General was asked whether the case was in the public interest. What changed was that, as the case progressed, Treasury counsel took the view that there was no longer a sufficiency of evidence, and he brought that to the Attorney-General's attention. At that point, the Attorney-General was not considering whether the case was in the public interest, but whether there was sufficiency of evidence.
Hon. Members will know that there must be evidence not just that supports the charge, but to rebut the defence. The evidence that is available changes over time in every case. Much has been said about this being a sudden decision. The House would rightly criticise the authorities—[Interruption.] Sorry, am I taking too long?
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