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Mr. McCabe: As the hon. Gentleman has told the House that there is no doubt in his mind as to the legality of the war, I assume that the release of the full advice would have no impact on his opinion, since he has already used his best judgment to come to that conclusion. Will he therefore tell the House whose cause would be served by the release of the information?

Mr. Cash: I am coming to that. The answer is simple: it is the cause of trust. The very people who have been deluged with the deception that there is a bar to the Attorney-General's opinion being released to the public would benefit. Let us make no mistake: many people have been deceived into believing that a constitutional bar exists. We are bound to ask why such an alleged bar was set up. It was because the Government did not want people to know that no absolute rule of confidentiality existed. It was for that reason that I wrote my letter to The Daily Telegraph and appeared on the "Today" programme. As I have said, I did so because I became so fed up and frustrated at the deception that was being perpetrated.

Mr. Salmond: How does the hon. Gentleman feel that the earlier exchange with the Foreign Secretary was left? The Foreign Secretary said first that the matter was up to the Attorney-General, but he seemed later to retract that. Did we reach a satisfactory conclusion on that issue?

Mr. Cash: I think we were getting there.

Such matters have been canvassed in the past, and I ought perhaps to refer again to Edwards, the great authority on the Law Officers of the Crown. He makes it abundantly clear that it is no more than a courtesy for the Attorney-General to be asked for his consent when a Minister decides—as a matter of his ministerial accountability—to exercise his discretion to release the opinion of the Attorney-General in regard to the sphere of functions relating to that Minister. In this case, it is the sphere of the Prime Minister, the Foreign Secretary and, to a certain extent, the Defence Secretary that is at stake. Having opened my remarks by noting the absence of the Solicitor-General from this debate, it is instructive to point out that we now have two Foreign Office Ministers here. I hope that that is in recognition of the fact that they are responsible for the release of the

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opinion, and that it is not specifically the Solicitor-General or the Attorney-General, but those Ministers, who are primarily concerned.

Mr. Llwyd: On that point, does not it make matters even worse that one of the senior legal advisers at the Foreign Office took a view opposite to that of the Attorney-General?

Mr. Cash: Certainly, it is unusual to find the Foreign Office legal adviser resigning. I am not privy to the full facts of that resignation. Of course, the Attorney-General's advice at the time will have been based on the facts as he understood them, on which I will comment in a moment.

Briefly, however, I want to deal with the other precedents that have been mentioned. The Archer Shee case in 1911, which was the famous Winslow boy case, raised matters affecting the integrity of the Admiralty. Then there was the instance of Austen Chamberlain on the legal questions arising over peace and disarmament in 1927. There was also the case of the naval base at Simonstown in 1971. There was the instance—this was not so much a matter of state policy, although I think that it was a matter of immensely important foreign policy—of the Maastricht treaty in mid-1993. The advice given by the Law Officers with regard to the Merchant Shipping Act 1988, which was disclosed in the Factortame case, was also an example. In addition, there was the substance of the advice given in connection with the Scott inquiry, and an incidence in the 1960s in relation to Commonwealth immigration. Lastly, of course, there is the summary opinion of the Attorney-General given in relation to this war.

The full advice has therefore been given on a number of occasions, and advice has been given in substance or in summary in others. As far as I know from all the reports that I have heard, the Australian Attorney-General's full opinion was given to the Australian Parliament. Many of the traditions on which Australia's parliamentary system is based are similar to ours, and no doubt similar considerations applied. I have been informed that the US Attorney-General's opinion could well be made available, too. Therefore, if we consider the desirability of transparency, there seems to be no profound reason why the opinion of the Attorney-General should not be available in this case.

Given the debacle in the House of Lords yesterday in relation to the Constitutional Reform Bill, the role of the Attorney-General may be subject to some uncertainty, if not threat, in light of the kind of reforms being proposed and the abolition of the Lord Chancellor's role. The debate therefore has a certain poignancy, as it could turn out to be highly inconvenient to have a man of integrity and independence of mind standing up to a Government and saying, "You cannot go to war." Previous Governments have had to contend with difficulties with regard to advice given by the Attorney-General in relation to matters of state policy, and that has been catastrophic for them.

As we know, or ought to know, conventions depend on the reason for the rule. If the reason in this case is merely to protect the Government—if the alleged convention not to release the advice of the Attorney-General is intended merely to protect the Government

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from their critics and those Back Benchers who voted reluctantly for the war—that is a bad reason. The convention, such as it is—broken as often as it is adhered to—should not be relied on in this instance. T. S. Eliot wrote in "Murder in the Cathedral", that now is my way clear, now is the meaning plain: temptation shall not come in this kind again, for I now know it is the greatest treason to do the right thing for the wrong reason. I believe that the Government's moral dilemma in relation to the non-publication so far of this advice turns on that moral dilemma.

For me, the most important question arising in this debate turns on accountability and trust—accountability for judgment and trust in the basis on which that judgment was made: the two are inter-woven. The disclosure of the advice is a matter not for the Attorney-General, but for the Prime Minister and the Foreign Secretary. The Attorney-General could have arrived at his opinion, pursuant to my question on the eve of war, only on the basis of the facts before him at that time. The facts were provided by the Prime Minister and the Foreign Secretary—and so was the perception, or the understanding, or the conduct, of international relations in the context of international law. That may not be apparent at first sight, but I believe it has a great bearing on the matters we are considering.

Contrary to suggestions by leading counsel in the press recently that the rule of confidentiality is based on the legal professional relationship between legal adviser and client, it is surely obvious to anyone that—as I said in an intervention earlier—the Attorney-General is not a mere legal adviser, and the Government are not a mere client. Given the case of R v. Allen in 1862, and on any constitutional analysis, the Attorney-General has a vital role in our constitutional arrangements. He is personally accountable to Parliament and is not collectively responsible to the Cabinet, as was made clear by the judgment of Lord Justice Cockburn. He is therefore in a unique and exposed position. At the time of giving his opinion on the legality of the war, if he had declared it to be unlawful and if his advice had not been accepted, he would have been honour-bound and expected to resign. That is his prerogative and his responsibility. If he advises the Government that a war is legal, all is well; if he does not, all hell is let loose.

In such circumstances, there is every reason why the Attorney-General should not be left as the boy on the burning deck. I am bound to say that that thought lay at the back of my mind when I told the Solicitor-General on 26 February, in relation to the dropping of the Katharine Gun prosecution, that I found much of what she said pretty unconvincing. It was anticipated that the full opinion of the Attorney-General would be demanded during the course of the case by way of disclosure. In particular, it was clear that Katharine Gun regarded herself as being blatantly in breach of the Official Secrets Act. The route adopted for the dropping of the prosecution on the ground of "evidential deficiency" is to say the least tortuous, although it does relieve the Attorney-General of the need to issue a nolle prosequi in the public interest, for which he alone would be personally accountable to Parliament, that being unchallengeable in any court.

The Solicitor-General claimed in her statement on that day that the Prime Minister was bound to take his law from the Attorney-General. In a letter of

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26 February, the then Clerk of the House of Commons, Sir William Mackay, stated that, in line with page 389 of "Erskine May",


In other words, we are back to the Prime Minister and the Foreign Secretary, although the latter refused to accept that point in his speech.

At 6 o'clock yesterday evening, I received an unsatisfactory answer from the Solicitor-General about the so-called evidential deficiency, which we all believe has much to do with the desire not to publish the full opinion. On the dropping of the Katharine Gun prosecution, the Attorney-General indicated in the other place that the papers relating to that evidence would be made available—or so I thought I heard him say. I have asked the Solicitor-General to lay these papers in the Library, and she said that she would provide an answer shortly. I faxed her last night, asking that the papers be made available for today's debate, but they have not been provided.

As I have said before, the production of the full opinion is a matter separate from the legality of the war. Many believe, for example, that the 45-minute claim was exaggerated in order to get Labour Members through the Lobby. In common with my colleagues—or most of them—I believe that the war was both legal and necessary. Indeed, I have much sympathy with the Prime Minister's speech last Friday on global terrorism, although I disagree with him when he claims that the question should not be one of "issues of trust", but of his judgment. For me, it is a question of both judgment and trust.

The Prime Minister is right to say that the United Nations needs reform and that international law needs re-evaluating. There is no final arbiter or court to adjudicate on many of these matters, although in my opinion we were unwise to submit ourselves to the jurisdiction of the International Criminal Court. Lord Boyce was right to insist that our armed forces were satisfied that the war was legal. We need to go further than that, however.

Of course, there is much to be said for the rules of international law in their general sense, but the Attorney-General's opinion is intimately bound up with the centre of gravity of our perception of, and conduct of, international relations, and with international law and our view of the nation state. It is therefore integral to the Government's view of foreign policy. The release of the Attorney-General's opinion would throw much light on these matters.

As the Prime Minister said in his Sedgefield speech, in our own self-interest we and the United States are ultimately bound up with the fate of other nations. Although he does not seem to appreciate the fact, his decision to go to war was based on the Westphalian concept of nation states, which he repudiated in his speech. According to that concept, states decide for themselves what is in their own self-interest—as the French, the Germans and the Russians did in respect of resolution 1441. Indeed, all those nations adopted their positions as individual nation states in their own self-interest, in opposition to the self-interest, as they saw it,

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of the United States and the United Kingdom. Indeed, Monsieur Vedrine, the former French Foreign Minister, said that the French were making decisions according to their interpretation of their own interests.

Fundamental matters of foreign policy such as the 45-minute claim and what the Prime Minister knew about whether or not the weapons were battlefield weapons are inherently matters of judgment as well as of trust. If the Prime Minister wants us to trust his judgment, he would do well, in line with the precedents on state policy, to satisfy the House that the instructions to the Attorney-General as evidenced in his opinion—and Her Majesty's Government's policy on international law and the United Nations as reflected in that opinion—stand scrutiny. That should include the Attorney-General's opinion about the extent and relevance of international law, so that it cannot be said that the Attorney-General had changed his mind about the legality of the war, as we know he did in respect of the Gun prosecution.

In circumstances that echo today's debate, it emerges that in 1924 the Cabinet exerted undue pressure on the integrity and independence of the then Attorney-General, Sir Patrick Hastings, in relation to the Campbell sedition case. But the storm clouds grew and eventually burst in a vote of censure on Ramsay MacDonald's Government, which then fell. It would be as well for the Prime Minister to take note.


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