IRAQ AND THE PUBLICATION OF LEGAL
ADVICE?
47. Much of the discussion of the initial decision
to invade Iraq was based on the advice given to the Government
by Lord Goldsmith as Attorney General as to whether the invasion
of Iraq was legal without a second resolution from the UN Security
Council. The Government faced calls for the publication of that
advice in full. On Tuesday 9 March 2004, Elfyn Llwyd MP tabled
a motion for debate 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".[77]
While the motion was rejected in the House of Commons by 283 votes
to 192, following continuing pressure and increasing media scrutiny,
the Attorney General's full advice on the legality of the war
with Iraq was published on 10 Downing Street's website on 28 April
2005. The document showed that the Attorney General's advice of
7 March 2003 had examined possible doubts and arguments about
the legality of the war. However, none of these concerns had appeared
in the published advice of 17 March 2003.[78]
This only served to fuel speculation that Lord Goldsmith had changed
his mind on the legality of going to war with Iraq in the face
of direct political pressure from Downing Street.[79]
As a result of this case there has been recent debate about whether
the Attorney General's legal advice to Government should be published
as a matter of course.
48. Writing in the Guardian on 1 February
2007, Patrick Wintour reported a speech due to be delivered by
the Rt Hon Harriet Harman MP, then Minister of State, Department
for Constitutional Affairs[80]
(apparently in her private capacity) on Saturday 3 February. It
suggested that the Minister would say that public trust in the
role of the Attorney General had been undermined, and this should
be addressed by requiring his legal advice to be published as
a matter of course.[81]
David Pannick QC agreed, and argued that "the Attorney General's
ultimate client is not the Government but the public, the Attorney
General should have the power, if necessary, to publish his or
her legal views on important matters, while maintaining the confidentiality
of discussions with ministers".[82]
49. However, there was little support for this position
amongst our witnesses. Lord Goldsmith told the Committee that
"the Attorney General is, and must remain, an adviser to
the Government and not to Parliament. He or she cannot serve these
two clients simultaneously without running into impossible problems
of confidentiality and conflict of interest".[83]
In oral evidence to the Committee the then Lord Chancellor, Lord
Falconer of Thoroton argued that:
"The right position is that in very many cases
it will be inappropriate to disclose the advice that has been
given because you want to be sure that Government departments
and ministers take advice. As somebody pointed out, if there is
a chance that the advice will immediately be published, that will
discourage people from time to time from taking advice. You also
need to have a conversation very frequently with your lawyer as
to what the position is. You want to be free to have that conversation
without embarrassment. I think there are certain occasions where
it is absolutely critical that the advice is published because
the consequences of the advice are so significant and one of those
is obviously in Iraq where the Attorney General did publish a
statement of what his legal conclusions were before the decision
was made by the House of Commons on the use of force against Iraq.
I agree with what the two Attorneys just said, namely that generally
you should not publish the advice. That should be the norm."[84]
50. Rt Hon Lord Morris of Aberavon QC likened the
relationship of the Attorney General and the Government to that
of a family solicitor and a client. He argued that: "most
of you would not wish to have the advice of your family solicitors
broadcast in the market place".[85]
He added that it is "entirely a matter between the Government
and the Attorney if it were opened up, and it has not been opened
up except in very rare and exceptional cases over 500 years, so
there must be some value in maintaining not only the concept of
not revealing the advice but also whether the Attorney has been
consulted at all".[86]
Public confidence in the role
of the Attorney General
51. Lord Goldsmith has acknowledged the public controversy
that surrounded his role over recent years. In oral evidence to
the Committee he said that "there are aspects of what I do
which have been controversial," but added that "that
has always been the case with Attorneys General".[87]
For example, in his book The Attorney General, Politics and
the Public Interest, John Edwards, founder of the Centre of
Criminology, Faculty of Law, University of Toronto, argued that
there have been "distinct whiffs of political pressure being
exerted",[88] since
the 1950s, and that "the ability to resist such pressures
will vary according to the experience, personality and determination
of the Law Officers concerned".[89]
52. In his written evidence to the Committee Lord
Goldsmith listed some of the controversial decisions of his predecessors,
which included: the decision of Sir Peter Rawlinson not to prosecute
Leila Khalid, a member of the PLO arrested for the attempted hijack
of an Israeli airliner in 1970; the cases of the Clay Cross councillors
and Gouriet in the time of Sam Silkin; Sir Michael Havers' consent
to the prosecution of the civil servant Clive Ponting under the
Official Secrets Act, following disclosure of information relating
to the sinking of the Belgrano; and the collapse of the
Matrix Churchill trial, leading to the Scott report into Arms
to Iraq, in the time of Sir Nicholas Lyell.[90]
53. Referring to the difficulties facing Attorneys
General, Lord Goldsmith cited the example of the recent controversy
over his role in the event of investigations into party funding.
He said "some commentators suggested I should simply stand
aside from any involvement, but as I pointed out that it is not
possible where my consent is actually required by law. No prosecution
under those provisions can go ahead without it. In fact, as I
also pointed out, the position goes further than that because
of my constitutional responsibility to be answerable for prosecutions
in this country".[91]
Based on both his own experiences and that of his predecessors,
Lord Goldsmith concluded that :
"It is inherent in the role of Attorney General
that it sometimes falls to the holder of that office to make controversial
or unpopular decisions. As one academic writer has put it: 'It
would seem that where politically contentious decisions are concerned,
the Attorney General is unlikely to escape criticism whatever
[decision] he makes'. However the examples I have mentioned give
the lie to any idea that the role of Attorney General has become
more 'political' or more controversial in recent years."[92]
However, in highlighting the inherent tensions of
the role of the Attorney General, Lord Goldsmith has only served
to strengthen the case for the reform of the office of Attorney
General. It is precisely his "constitutional responsibility
to be answerable for prosecutions," which is at the heart
of the problem.
54. Recent
controversial issues including the 'cash for honours' investigation,
the decision not to prosecute in the BAE Systems case and allegations
of political pressure to amend legal advice on the war in Iraq,
have compromised or appeared to compromise the position of the
Attorney General. The perceptions of a lack of independence and
of political bias have risked an erosion of public confidence
in the office.
55. We agree
that there are inherent tensions in the role of the Attorney General
and that this is not a new situation. However, it is time that
these issues were addressed. The tensions which have been highlighted
by these three controversial cases, alongside the institutional
problems identified earlier, point to the need for the reform
of the role and responsibilities of the Attorney General.
56. The Attorney
General's responsibility for prosecutions has emerged as one of
the most problematic aspects of his or her role. Allegations of
political bias, whether justified or not, are almost inevitable
given the Attorney General's seemingly contradictory positions
as an independent head of prosecutions, his or her status as a
party political Prime Ministerial appointment, and his or her
political role in the formulation and delivery of criminal justice
policy. This situation is not sustainable.
49 For example, Lord Woolf in his Hamlyn lectures,
Lord Steyn in a lecture to the Administrative Law Bar Association. Back
50
Ev 61 Back
51
Professor Jeffrey Jowell QC, Politics and the Law: Constitutional
Balance or Institutional Confusion , the JUSTICE Tom Sargant
Memorial Annual Lecture, 17 October 2006 Back
52
Ibid Back
53
Ibid. Some Commonwealth countries do have Attorneys who combine
the legal and political roles but others (such as Ireland, South
Africa and India) do not. Back
54
http://news.bbc.co.uk/1/hi/uk_politics/4812822.stm Back
55
http://news.bbc.co.uk/1/hi/uk_politics/5174108.stm Back
56
http://news.bbc.co.yk/1/hi/uk-politics/6718417.stm Back
57
Constitutional Affairs Committee, Party Funding-oral evidence
from the Lord Chancellor on the role of the Attorney General,
First Special Report of Session 2006-07, HC 222 Back
58
Q 97 Back
59
Constitutional Affairs Committee, Party Funding-oral evidence
from the Lord Chancellor on the role of the Attorney General,
First Special Report of Session 2006-07, HC 222 Back
60
Ibid Back
61
Q 46 Back
62
Q 49 Back
63
Q 51 Back
64
For example, "Lord Goldsmith's folly has now been brutally
exposed", The Guardian, 1 February 2007. Back
65
Q 12. See also Will Woodward and David Leigh, The Guardian,
16 December 2006, also available at guardian.co.uk/Saudi/story/0,,1973357,00.html.
Back
66
David Leigh and Rob Evans, The Guardian, 1 February 2007,
www.guardian.co.uk/print/0,,329702255-117700,00.html add corner
house evidence. Back
67
Ev 80 Back
68
HL Deb, 1 February 2007, col 339 Back
69
Q 12 Back
70
Q 13 Back
71
Q 15 Back
72
Q 21 Back
73
Q 19 Back
74
Ev 50 and 51 Back
75
The Guardian, 1 February 2007, available at www.guardian.co.uk Back
76
Ev 106 Back
77
HC Deb, 9 March 2004, col 1397 Back
78
http://news.bbc.co.uk/1/hi/uk_politics/vote_2005/frontpage/4482029.stm Back
79
http://www.guardian.co.uk/Iraq/Story/0,,1164079,00.html and http://politics.guardian.co.uk/foi/story/0,,1445145,00.html Back
80
Harriett Harman became Minister of State for Justice on the 9
May 2007. Back
81
guardian.co.uk/uk_news/story/0,,2003074,00.html Back
82
David Pannick QC, The Times, 27 February 2007 Back
83
Ev 49 Back
84
Q 144 Back
85
Q 139 Back
86
Q 140 Back
87
Q 102 Back
88
p. 321 Back
89
p. 321 Back
90
Ev 61 Back
91
Attorney General, The Role of the Attorney General in Changed
Constitutional Circumstances, Birmingham College of Law. 29
November 2006 Back
92
Ev 61 Back