---

3.39 pm

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 issue—the confidentiality of the advice—but 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

9 Mar 2004 : Column 1430

situation gave rise to automaticity, but that Iraq had a final opportunity, under resolution 1441, to comply with the UN resolutions but had not taken advantage of that.

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 resolutions—1441 in particular—gave 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 and—whether or not the action is legal—the 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 March—just yesterday—that the impact of his questioning may have had an effect. He says:

"Now, if that caused them to go back saying 'We need our advice tightened up', I don't know."

Ross Cranston: As I said, our armed forces are scrupulous about whether or not they are acting in accordance with the law. I do not know the background, but I can well understand Lord Boyce wanting

9 Mar 2004 : Column 1431

assurance on that point. On the substance of the advice, which is not the issue of the debate, I am absolutely clear, as I have told the House on a number of occasions, that the repeated failure of the then Iraqi Government to comply with a series of resolutions dating back to the first Gulf war—resolutions 678, 687 and a number of others, leading to resolution 1441—gave rise to the obligation unconditionally to co-operate, which Saddam Hussein failed to do.

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 confidentiality—the lawyer's obligation to maintain the confidence of the client—and 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:

"Were this advice to be published, it would leave future governments of whatever hue in difficulty when it comes to obtaining confidential legal advice on major matters of public or international law. That would be clearly against the public interest."

In other words, we want our armed forces and civil servants to seek legal advice, and the protection given by the confidentiality of the advice encourages them to do so. That has always been the rationale of the confidentiality of advice, although one may question it. In my former guise, I was not always persuaded by the notion that legal professional privilege should be absolute. The law should recognise that there are good public policy reasons in some cases for overcoming legal professional privilege, but that is the general rule.

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."

9 Mar 2004 : Column 1432

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:

"That opinion turned largely on what intelligence told Whitehall about the degree to which Saddam Hussein and his weaponry posed a danger to other people's nationals other than his own."

The right hon. and learned Member for North-East Fife was reported last week in The Guardian as saying:

"The reliability of the advice is directly related to quality of the facts on which it is based".

The argument is serious, but it can be easily resolved because the facts on which the advice was based were perfectly clear. The facts are set out in Security Council resolution 1441, and my right hon. Friend the Foreign Secretary spoke about the way in which each of the resolution's words was carefully negotiated.

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

"further that Iraq repeatedly obstructed immediate, unconditional, and unrestricted access to sites designated by . . . UNSCOM".

It also says that the Security Council recognises

"the threat Iraq's non-compliance with Council resolutions and proliferation of weapons of mass destruction and long-range missiles poses to international peace and security".

The obligations on Iraq are clearly set out in the substance of resolution 1441. Paragraph 1 says that Iraq is "in material breach". As I have said in previous debates, that is the most serious kind of breach because it may give rise to the breach of a treaty. Paragraph 2 gives Iraq

"a final opportunity to comply with its disarmament obligations".

9 Mar 2004 : Column 1433

Paragraph 9 puts the important obligation on Iraq to

"cooperate immediately, unconditionally, and actively with UNMOVIC and the IAEA".

The resolution is perfectly clear.

---