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Mr. Deputy Speaker (Sir Alan Haselhurst): Order. I do not think that it was anything I said, but I was intending to say that the exchanges between Front-Bench Members have now taken half an hour. I appeal to hon. Members. There is time-limited and important business still to come, and notwithstanding the legal complexities of this subject, I would appreciate brief questions and equally brief answers.
Glenda Jackson (Hampstead and Highgate) (Lab): Are the views expressed under the Shawcross exercise furnished to the defence, and did they contribute in any way to the decision that was taken yesterday?
The Solicitor-General: As I understand it, the Shawcross letters are not furnished to the defence. They go to the Attorney-General's decision whether the prosecution is in the public interest, and are not a matter of evidence.
I apologise to the House for taking so long to answer questions put by Front-Bench Members, but these are complicated and nuanced issues of some constitutional depth. I would rather choose my words carefully and get it right than mislead the House. However, I realise that other hon. Members have tabled urgent questions and they want to be able to ask them.
Mr. Nigel Jones (Cheltenham) (LD): GCHQ is in my constituency, and Katharine Gun is one of my constituents. I have supported her through the recent difficult months, during which she has felt vulnerable, and I felt the relief that she experienced yesterday. Have the Government given any thought to compensation for legal costs and any other compensation that it may be appropriate to give Ms Gun to help her to rebuild her life?
The Solicitor-General: Obviously, it will be for the defence to apply for legal costs if it is so minded, and the processes will be applied in the usual way.
Mr. Harry Barnes (North-East Derbyshire) (Lab): On the public interest test, is my right hon. and learned Friend aware that, through the Enterprise Act 2002, the Department of Trade and Industry has virtually scrapped public interest concerns in its area of responsibility? How safe is the public interest in the Government's hands?
In her statement, my right hon. and learned Friend referred to ministerial colleagues who may have an interest in the case, because of public interest considerations. Is not there a distinction between ministerial interests and the public interest?
The Solicitor-General: Ministerial interest is not a question of curiosity, but whether Departments are affected by the scope of the issues in any particular
prosecution. My hon. Friend asked whether the Department of Trade and Industry takes the public interest sufficiently into account. I was not aware that DTI prosecutors no longer operate the evidential and public interest tests. If that is so, I will correct the position, but that is not the situation as I understand it.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): Is not it plain that Katharine Gun was going to allege that what she did was necessary and justified? Is not it astonishing that the Government did not feel able to rebut that contention? Does not the right hon. and learned Lady understand that many of us who opposed the war strongly suspect that in the Government's possession are documents that they would have been obliged to produce that would have shown that the war was unlawful and unnecessary? It was because of their reluctance to put such documents before the court that they felt unable to rebut the defence.
The Solicitor-General: No, that was not the case. It is not a question of a judgment having been made that if we went ahead it would have involved us putting forward these documents, so we decided to pull the plug. That was not the case. All I can refer to in relation to the evidential obstacles is what I said in my opening statement, and that is the position.
John McDonnell (Hayes and Harlington) (Lab): The trial of Katharine Gun would inevitably have had to address the question whether Mr. Frank Koza, senior official of the United States National Security Agency, had requested the Government's help on an eavesdropping "surge" on delegates from six non-permanent members of the United Nations Security Council. This is a matter of the gravest public interest, which has been heightened today by my right hon. Friend the Member for Birmingham, Ladywood (Clare Short), who was asked whether British spies were
- "instructed to carry out operations within the UN on people like Kofi Annan"
What route is available to us now to seek the truth before the House?
The Solicitor-General: I can at least reassure my hon. Friend that, in all respects, the Government act within international and domestic law in their dealings at home and abroad.
Mr. William Cash (Stone) (Con): I hope that the Solicitor-General will understand when I say that I found much of what she said pretty unconvincing. Surely it is in the public interest to prosecute such a blatant breach of the Official Secrets Act. The Shawcross exercise seems to have played an enormous part in the decision-making process. It certainly leaves me unconvinced by the explanation that we have just been given.
With respect to the right hon. and learned Lady's assertion that the Prime Minister is obliged to take his law from the Attorney-General, I refer her to a letter I received from the previous Clerk of the House, Sir William McKay. He quotes Balfour in 1901, and says:
- "'The Law Officers have no control over the legal action of the government. A minister is not obliged to take his law from the Attorney General'. Accountability thus rests with the (ministerial) decision-taker."
The Solicitor-General: I remind the hon. Gentleman that the decision on any action by a Department of State or the Prime Minister is for the Minister concerned or the Prime Minister. The legality of the action is a question for the Attorney-General. That is quite straightforward. It is not open for a Minister to obtain the Attorney-General's legal advice, for the Attorney-General to say "That is not within domestic or international law" and for the Minister then to go ahead and do it. That is not what happens. If it did, it would be unacceptable. I emphasise that that is not what happened. There is not a take it or leave it attitude about the legality of Government actions. There is not a shopping around for whose advice to take. The Government have made it clear that they will not act in breach of international or domestic law, and they have only one authoritative source of legal advice, aside from the courts, and that is the Attorney-General.
The Solicitor-General: I am sorry. I cannot comment on Balfour. That would take too long.
I am disappointed that the hon. Gentleman found what I said unconvincing because I have tried to be as clear as possible. He says that it seems that the Shawcross exercise played a large part in the discontinuance of the case. I do not know how many times I have to repeat it, but neither the Shawcross exercise nor any considerations arising from it played any part in the discontinuance. The Attorney-General spoke to the Foreign Secretary on both 14 and 24 February; it was not a secondary Shawcross exercise along the lines of "Shall we drop this case? What do you think?" It was simply a matter of reporting to him about evidential developments that had been identified by Treasury counsel in the process of the case and that materially affected the case to the extent that, as we now know, the prosecution decided to discontinue it.
Denzil Davies (Llanelli) (Lab): Given the reasonable assumption that the defence of necessity must have been based upon a belief by the defence that the war was illegal, and since my right hon. and learned Friend has said that the Government would not be able to rebut that defence, does it not follow that the Government are not able to disprove the assertion that the war was illegal?
The Solicitor-General: No. The defence of necessity can be based on many issues.
Sir Patrick Cormack (South Staffordshire) (Con): As one who deeply deplores the actions of Katharine Gun, and is somewhat bemused and disappointed by the Attorney-General's decision, I should like to ask the Solicitor-General what steps can be taken to preserve the trust and confidence that are and must be at the heart
of any civilised Government in a democratic society. In that context, how soon can we have a review of the Official Secrets Act?
The Solicitor-General: I cannot add to what I have already said, except that the question of the implications for the Act will have to be considered by my right hon. Friend the Home Secretary.
Donald Anderson (Swansea, East) (Lab): Many of us must surely still be puzzled as to what was new; what of fundamental importance happened between the initial decision of the Attorney-General and the decision to discontinue. We know that the defence of necessity was anticipated. We know that any public anxiety about the legal basis of the war was a constant. We know that the defence had not yet made any request for particulars. What is the lacuna in the law that has been revealed? Will it be stopped? Is there not otherwise a great danger that other people in a position similar to that of Ms Gun will feel that they can disobey their obligations under the Official Secrets Act and talk to newspapers?
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