---

Madam Deputy Speaker: I inform the House that Mr. Speaker has selected the amendment in the name of the Prime Minister.

2.12 pm

The Secretary of State for Foreign and Commonwealth Affairs (Mr. Jack Straw): I beg to move,

That this House notes the long-standing convention, followed by successive governments, that the advice of the Law Officers is given in confidence and is not disclosed publicly; notes, however, the Answer given in the House of Lords by the Attorney General on 17th March 2003 which set out his view of the legal basis of the use of force against Iraq, and the letter of the same date from the Secretary of State for Foreign and Commonwealth Affairs to the Chairman of the Foreign Affairs Committee giving more detail of the legal position; and believes that the priority now for the Government is to help the Iraqi people rebuild Iraq.

I am grateful to the Welsh nationalists and Scottish nationalists for using their time for this debate. The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) began by telling the House that he would confine his argument to the case for publication of the legal advice. As his speech went on, however, he developed his case into an argument about the nature of the legal advice as to whether the war was legally justified. At the end of his speech, he provided the astonishing and illuminating revelation that when two or more lawyers are gathered together and consider the same question, they almost always disagree.

On this issue, from the very start, there have patently been legitimate disagreements about whether, in the event of there not being a second resolution—a point with which I will deal later—it would have been and was lawful to take military action against the Saddam Hussein regime in the circumstances that we found last spring. I respect those arguments, but I wholly resist the insinuation in the hon. Gentleman's speech that the Attorney-General, and Ministers reflecting his view, have somehow not been straightforward with the House about the nature of the legal advice that he gave or that we received.

As the amendment states, a long-standing convention exists that the advice of the Law Officers to Ministers is given in confidence and should not be published. I have never thought, however, that precedent alone is sufficient justification for anything, and, of course, the Government, like all our predecessors, have been prepared to depart from previously accepted conventions when there has been a good reason. The bigger question is therefore why there are strong substantive arguments in favour of this convention, now and for the future.

First, a general principle applies to all relationships between lawyers and those whom they advise that the advice that they offer must in principle be given in confidence. If we want our societies to be based on the rule of law, as we do, we must have properly qualified lawyers who are subject to high standards of professional integrity. To be effective, lawyers require

9 Mar 2004 : Column 1407

the confidence of their clients. All of us who have practised—even for a short while, as I did—know that there could and would be no effective relationship if the advice that we gave, which must sometimes not be the advice that our client would wish to hear, was disclosable to the other party in civil proceedings or to the court or the defence in criminal proceedings, or was made publicly available. If that were so, our system of justice as a whole would suffer.

Mr. Grieve: I agree with that statement in its entirety. Is it not the case, however, that the Government, as the client, chose to waive at least part of their privilege in relation to the document, because they chose to publish a summary of the Attorney-General's advice rather than simply stating, "It is the Government's view that . . . "? Why did the Government do that? Was it not in fact to back up their position, which ought therefore to make them reconsider whether the full advice should not be made available now, given the circumstances that have arisen?

Mr. Straw: On a number of previous occasions, Governments, including those of the hon. Gentleman's party, have made available to the House the outline opinion of Law Officers. For example, in relation to Maastricht, which some of my hon. Friends will remember well, the then Labour Opposition moved an amendment to ensure that we could sign up to the social chapter. Along with many arguments put forward there was the argument that if we signed up to the social chapter, and overturned the protocol which the Major Government had signed up to, we would not be able to ratify the whole Maastricht treaty, and we were told that that argument was made on the basis of legal advice. A Minister then came to the House rather shamefacedly and told us that, by the way, that was wrong, and that, after all, we could, if we wished, remove the opt-out from the social chapter and still sign up to and ratify the Maastricht treaty. On that occasion, the Foreign Secretary came to the House and gave an outline of the basis for the subsequent opinion, which is very similar to that which I gave the House on 17 March last year, and the Attorney-General went to Committee and gave an outline of the case, but he never published his advice.

To the hon. Member for Beaconsfield (Mr. Grieve), whom I respect, I say that if the Conservative party is serious about getting into office, about which I have grave doubts, it ought to think one, two, three, four and many more times before going down the opportunistic route of backing the Scottish and Welsh nationalists. I have been through all the speeches made this time last year and previously. I can remember no occasion whatever—not one—on which Conservative Front-Bench spokespeople demanded to see the full text of the Attorney-General's advice. What I do remember, for sure, is that people had legitimate legal arguments about that advice. I also remember a very good speech, which was not in agreement with the Government, by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), in which he said:

"I do not speak of the legalities. I have read what the Attorney-General said about that matter and I do not feel competent to express a view as to whether he is right or wrong, but I am competent to say this: many distinguished lawyers—as distinguished as the Attorney-General—will take a contrary view."

9 Mar 2004 : Column 1408

That is certainly true. He continued:

"In any event, if I am honest, I do not think that legalities go to the root of the matter. The real question is whether it is right—right expressed in moral terms."—[Official Report, 18 March 2003; Vol. 401, c. 796.]

He then disagreed with what the Government were doing, and I entirely respect him for that. Lest there be any doubt, however, it is of course absolutely essential that although morality was at the heart of what we were doing, Governments must be satisfied that what they do is also legally correct. At the heart of the argument last year was the question of whether or not it was morally and politically right to take military action, and that remains the case.

Mr. Alex Salmond (Banff and Buchan) (SNP): The legal arguments were rather important, and I am grateful to the Foreign Secretary for reminding us of the days when he used to support disclosure of such matters, but he did less than justice to what my hon. Friend the Member for Meirionnydd Nant Conwy (Mr. Llwyd) said about the opinion of major international lawyers. The point was not that they disagreed about the conflict, but that although they disagreed about the conflict, they agreed that the Attorney-General's advice, in its full form, should be disclosed. If the Foreign Secretary resents the insinuation behind that, he has the remedy of publishing the advice.

Mr. Straw: I shall come to the issue of the Freedom of Information Act 2000. My position on disclosure in opposition was entirely consistent with the position I have taken in government.

Llew Smith: I accept that if a private individual seeks legal advice, he or she has a right to ensure that it remains confidential. If I may state the obvious, however, a Government are not a private individual but a democratically elected, accountable body. How can accountability be retained if a Government will not provide the people with the information on which they have made a decision? How can there be accountability and democratic government if they will not provide Members of Parliament with that information so that they can vote in a particular way?

Mr. Straw: My hon. Friend anticipates my next point. Should the principles that apply to private individuals and corporations in respect of legal professional privilege—

Mr. William Cash (Stone) (Con): Will the Foreign Secretary give way?

Mr. Straw: I want to make some progress first.

Should those principles apply to Government, or are there such differences in the nature of Government that we should make an exception to that general rule? I do not suggest that, for many if not most purposes, the nature of Government is comparable to that of a private individual or corporation; and because we live in a democracy, Governments must be significantly more accountable for their actions than private individuals or corporations—and rightly so. But Governments, Ministers and senior officials need legal advice in the same way as private individuals and corporations.

9 Mar 2004 : Column 1409

Ministers have an overwhelming duty to act lawfully, and, as I know from my time at the Home Office, Governments are frequently parties in legal actions. I therefore suggest that the same considerations apply in this particular instance.

Those arguments, moreover, have been accepted by the House as a whole. The hon. Member for Meirionnydd Nant Conwy referred to freedom of information. I well remember the great debates on freedom of information, because it was my party that promised at the time of the 1997 general election that we would introduce a freedom of information Act—and my party that introduced the Freedom of Information Act 2000, which provides a far more extensive right of disclosure than exists in virtually any other European country outside Scandinavia.

We had many debates at that time about the balance between disclosure and the public interest in non-disclosure so that government could continue. That was always going to be an issue. Big questions were raised about the extent to which background papers available to Ministers, such as Cabinet Committee papers, should be made available. But I do not recall, and I have checked carefully today, a single occasion on which there was any objection to the exemption in respect of legal professional privilege—what became section 42 of the Act—or, more directly, in respect of what became section 35(1)(c), concerning the provision of advice by any of the Law Officers or any request for the provision of such advice. There was consensus throughout the House, and in the other place, that provision of such advice ought to be protected.

---