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Ross Cranston (Dudley, North) (Lab): Only rarely does the House discuss matters of lawyers' law, and I am rather surprised that we are doing so this afternoon. The confidentiality of the Attorney-General's advice may be a matter that plays more in the taverns and byways of some parts of Wales, and possibly of Scotland, than in my constituency. Frankly, it has no resonance in my constituency.
Yes, there is an interest in the security situation in Iraq because some of my constituents and some of the sons and daughters of my constituents are in that country with the United Kingdom's armed forces. There is interest in the developing democracy in Iraq and the emergence of a free press, responsible government and the interim constitution that was agreed recently. There is also some interest in what is to happen to Saddam Hussein and when he is to be tried for crimes against humanity, but there is no interest whatever in the subject of this debate. None the less, I shall address it.
I thought the debate was to be about a specific issuethe confidentiality of the advicebut the right hon. and learned Member for North-East Fife (Sir Menzies Campbell) strayed into the substance of that advice. I understood him to say that because we do not have the full advice we cannot understand the full legal reasoning. If that is what he was saying, let me assure him that the matter is widely canvassed in legal literature and there are extensive discussions of the various legal arguments. It is not merely a matter of an A4 sheet, as the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) claimed; a fuller memorandum to the Select Committee on Foreign Affairs was published by my right hon. Friend the Foreign Secretary, which set out in detail issues such as automaticity. That advice clearly stated that we did not accept that the
Mr. Salmond: That being so, we should do justice to the comments of the right hon. and learned Member for North-East Fife (Sir Menzies Campbell). Does not the hon. and learned Member for Dudley, North (Ross Cranston) find it passing strange that the published summary of the Attorney-General's advice included no consideration of such pertinent issues as proportionality in weighing up the legality or otherwise of the conflict before reaching a conclusion?
Ross Cranston: As I just said, one has to look not only at the summary of the Attorney-General's advice, but at the memorandum to members of the Foreign Affairs Committee published on 17 March, which explores in great detail the legal reasoning adopted by the Government.
Sir Menzies Campbell: May I put a specific question to the hon. and learned Gentleman? Is it his position that the UN resolutions, including 1441, gave warrant for regime change?
Ross Cranston: The resolutions1441 in particulargave rise to an obligation that the then Iraqi Government bring themselves into compliance. The onus was on that Government to comply with the obligation to disarm. They had a final opportunity to do so, mechanisms were set up for that under 1441, but they did not comply. I shall return to that point in a moment.
Ms Abbott: My hon. and learned Friend's argument appears to be that the legality of the case for war was wholly transparent, partly because of the summary and partly because of various memorandums. But if the legal basis for going to war was as transparent as all that, why, only days before the war, was the Chief of the Defence Staff, Sir Michael Boyce, still asking for a clear legal authorisation?
Ross Cranston: Because, clearly, our armed forces and our civil servants are scrupulous about complying with legal advice. I do not know the substance of the advice being sought, but two issues are, unfortunately, sometimes confused: the legality of taking action andwhether or not the action is legalthe need to comply with what was set out in the Geneva protocols and is now incorporated in the statute of the International Criminal Court, namely, that one cannot commit crimes against humanity, war crimes and so on.
Mr. Salmond: The admiral can help us, because he speculates in The Herald on 8 Marchjust yesterdaythat the impact of his questioning may have had an effect. He says:
Let me come, first, to the technical issue that is the substance of the motion: the obligation to publish the advice. In private law matters, there is both confidentialitythe lawyer's obligation to maintain the confidence of the clientand the separate evidential rule, which involves legal professional privilege, one aspect of which is that one cannot get access to legal advice during judicial or quasi-judicial proceedings. One cannot get access to communications between the lawyer and the client that have been used for the purpose of obtaining legal advice. The reason for that goes back to statements such as those of Lord Brougham in the early 19th century, for example, and reiterated by the chairman of the Bar Council, quoted by my right hon. Friend the Foreign Secretary.
I shall quote Mr. Irwin, who is the current chairman of the Bar in England and Wales:
In the public sector, there are additional features. There is the provision in section 35(1)(c) of the Freedom of Information Act 2000, which my right hon. Friend mentioned. There is the provision in the ministerial code, and there is the convention. It is a convention, not an absolute rule, and it is recognised in "Erskine May". The hon. Member for Meirionnydd Nant Conwy quoted Edwards's "The Law Officers of the Crown." It is a convention widely recognised that the Law Officers' legal advice remains confidential. There are exceptions; it is not an absolute rule. There is the case of the Belfast riots in 1865, and there are other exceptions. In recent times, Law Officers' legal advice was published as a result of legal proceedings in the Factortame case and the Scott inquiry, but good public policy justifications are needed to publish in defiance of the convention.
The argument that it might be necessary to publish the Attorney-General's advice in specific legal proceedings so that people can defend themselves in criminal cases has already been used in the debate. Several Greenpeace volunteers are appearing before the magistrates court as a result of occupying tanks at the Marchwood military docks in February 2003. They want to argue a defence of necessity and say, "We were trying to prevent an illegal war, so we need access to the Attorney-General's advice."
Mention has also been made of the Katharine Gun case, although if one reads the statement by the Director of Public Prosecutions carefully, one finds that the abandonment of that prosecution had nothing whatsoever to do with the Attorney-General's advice. The Greenpeace activists are barking up the wrong tree, and I suggest that they get better legal advice if they think that the Attorney-General's opinion would provide them with any defence to the charges of aggravated trespass or criminal damage because there must be some proximity between the Attorney-General's advice and the defence of necessity. Anyhow, they may make the application and can seek judicial review if the magistrates refuse to order the advice to be produced.
We have heard a second argument about the situation somehow undermining the position of the parliamentary ombudsman, who, as I understand it from press reports, has sought the advice as a result of an application from The Guardian. It would be deeply ironic if the advice were made available to her but not to the House, and I frankly do not think that she should have access to the advice. I cannot understand the legal justification for making the advice available to her, but that is another argument, which frankly is not especially relevant today.
The third argument, which is a serious argument, is that we must understand the factual basis on which the advice was given. Serious commentators such as Professor Peter Hennessy have commented on the matter. Professor Hennessy said:
The preamble to resolution 1441 sets out two facts: Iraq's breach of Security Council's disarmament resolutions over 12 years since 1990, and its failure to comply with inspection regimes under those resolutions. As the preamble says, the Security Council was deploring