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Sex Discrimination (Clubs and Other Private Associations)

David Wright accordingly presented a Bill to make provision for the prevention of sex discrimination in relation to membership of, or the benefits, facilities and services afforded by, clubs and other private associations: And the same was read the First time; and ordered to be read a Second time on Friday 14 May, and to be printed [Bill 68].

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Opposition Day

Iraq (Attorney-General's Advice)

1.37 pm

Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I beg to move,

That this House believes that all advice prepared by the Attorney-General on the legality of the war in Iraq should be published in full.

I am pleased to be speaking to the motion, which stands in my name and in those of my hon. Friends. It is co-sponsored by Plaid Cymru—the party of Wales—and the Scottish National party.

The wording of the motion is tightly drawn, but for further clarity I should say that this debate is not about whether one was for or against the conflict in Iraq. As was explained to the House, my colleagues in Plaid Cymru and the Scottish National party were against military action in Iraq before it started because we were not persuaded that the war was justified. We did not believe that either dossier displayed any credible threat, immediate or otherwise, from the tyrant Saddam, and that remains our opinion. There was no justification for the war then: ergo, there is a real question about the legality of the action that was taken. That is the issue on which we hope to concentrate this afternoon.

As the motion makes plain, we are calling for the Government to publish the advice or advices of the Attorney-General, because without such publication it will not be possible fully to inform the debate. Incidentally, both the Prime Minister and the Foreign Secretary have described the debate and the disagreement as "legitimate." If we accept that the debate is legitimate, surely it is part of the function of Ministers of the Crown to inform it fully and apprise Parliament of all facts that are germane to the issue. That is beyond contradiction. In calling for the publication of the advice or advices, we call on the Government to inform the House.

Nothing in the "Ministerial Code" prevents the full publication of the advice or advices. In the foreword to the current code, the Prime Minister says:

"I believe we should be absolutely clear about how Ministers should account, and be held to account, by Parliament."

Paragraph 5 on page 1 states:

"The code should be read against the background of the overarching duty on Ministers to comply with the law including international law and treaty obligations."

Ministers are expected to observe the seven principles of public life, which include openness. The code states:

"Holders of public office should be as open as possible about all the decisions and actions they take. They should give reasons for their decisions and restrict information only when the wider public interest clearly demands."

The code therefore provides that Ministers should be as open as possible with Parliament and the public, refusing information only when that is considered to be in the public interest.

When considering the disclosure by Ministers of Law Officers' opinions, it is helpful to consult "The Law Officers of the Crown" by J. Ll. J. Edwards. The chapter of the 1964 edition entitled "Attorney-General's Fiat and Responsibility to Parliament" states on page 259:

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"When Parliament is faced with situations involving the disclosure of the contents of the Law Officer's opinions to departmental Ministers, it is surely impossible to be dogmatic and to assert either the principle of absolute confidentiality, or on the other hand, a rule requiring the government to reveal in full or in part the content of the opinions. There may be circumstances, as exemplified by the Belfast Riots and the Archer Shee cases, in which everything is to be gained by telling the House all the facts."

It continues on page 260 that

"the better constitutional convention is the flexible rule expressed in Erskine May".

The rule states:

"The opinions of the Law Officers of the Crown, being confidential, are not usually laid before Parliament or cited in debate . . . But if a Minister deems it expedient that such opinions should be made known for the information of the House, he is entitled to cite them in debate.'"

Page 261 of Edwards states:

"Intransigence on the part of Ministers or Members of the Commons when issues of this nature arise for debate is not calculated to enhance the prestige of Parliament or the administration of justice. So far as the Attorney-General and the Solicitor-General are concerned, in suitable cases sufficient reason should be given to convince the House of Commons that the Law Officer has considered all the relevant factors and has reached his decision with that impartiality of judgement which is the ultimate strength and protection of the constitutional independence of the Law Officers of the Crown."

There are several examples of the disclosure of Law Officers' advices. For example, Law Officers' advice on the compatibility of the Commonwealth Immigrants Act 1968 has been publicly available in the Public Record Office since 1998. Their advice on the legality of proposed merchant shipping legislation and its compatibility with European law, as disclosed to the courts in the Factortame litigation, is available in the House of Lords Record Office. In a written answer on 12 January, Baroness Amos stated:

"In 1993, Law Officers' advice relevant to the subject matter of the Arms to Iraq inquiry was disclosed to the Scott inquiry."—[Official Report, House of Lords, 12 January 2004; Vol. 656, c. WA 64.]

Hon. Members may remember that the advice was published in its entirety as an annexe to the report.

The Government's amendment refers to a hard-and-fast convention. I do not know on what evidence they base that. There is no hard-and-fast, time-honoured convention.

Mr. Simon Thomas (Ceredigion) (PC): My hon. Friend is doing a sterling job through his revelations. We have been told for several weeks that it is not the convention to reveal the Attorney-General's advice. My hon. Friend has explained that such advice has been disclosed in the past and, dare I say it, on issues that appear to be less important than going to war with Iraq.

My hon. Friend knows that many of those who lead our armed forces in Iraq wanted unambiguous advice up to five days before the start of the conflict. Only then did they receive two lines of advice from the Attorney-General. Surely my hon. Friend's comments and our knowledge of the war present a case that it is crucial for Ministers to answer. Perhaps they will take the opportunity to intervene on my hon. Friend to explain why the advice has not been published.

Mr. Llwyd: My hon. Friend speaks for himself and makes an important point. There is great anxiety in not only the House but the public arena about the reason for not producing the advice or advices.

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I am worried about the Government's stance. Apart from setting what appears to be a precedent for the Government to extract what is expedient for them from the document and make only that public, thereby applying soundbite politics again, the precise subject matter of the advice and its context are worrying.

Lembit Öpik (Montgomeryshire) (LD): Does the hon. Gentleman agree that the precedent, which the amendment mentions, was broken by the Government's selectively sharing some of the advice? Does he further agree that there is no difference in principle between sharing part of the advice, as the Government have done, and sharing all of it, as the rest of us want?

Mr. Llwyd: The hon. Gentleman is right. It is an added concern, which has recently been widely mentioned. There is no distinction, although there are more examples of such actions in the past.

Treasury counsel—senior, independent counsel—would have received a set of instructions when advising the Attorney-General. Their accuracy or veracity is key. If counsel were ill informed or, perchance, misled about a key component of the instructions, the advice would be flawed from the start. In the case that we are considering, the instructions would undoubtedly have set out the Government's case for war. It is fundamentally important to establish whether the instructions contained references to the infamous 45-minute claim. If they did, and counsel accepted them as valid, the whole basis of the advice could have been flawed or skewed from the beginning.

Furthermore, did the Government argue that the 12-year-old United Nations resolutions were extant? Was that presented to counsel as an undisputable fact? Again, if so, the advice could have been skewed from the beginning.

Ian Lucas (Wrexham) (Lab): Is the hon. Gentleman making the case that the instructions on which the advice was given should be disclosed too? The motion does not make that clear.

Mr. Llwyd: I shall go into detail about that later, but I shall also deal with the point briefly now. Counsel's advice would undoubtedly include the instructions, because he or she would have to base his opinion firmly on the facts before him or her at the time. Given that the hon. Gentleman is a lawyer, I am surprised by his intervention. Perhaps it shows why he is here and not in practice.

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