Examination of Witnesses (Questions 112-119)
RT HON
LORD MORRIS
OF ABERAVON
KG QC AND RT
HON LORD
MAYHEW OF
TWYSDEN QC
28 FEBRUARY 2007
Chairman: Good afternoon, Lord Mayhew
and Lord Morris, and a very warm welcome to you and thank you
for giving us the benefit of your experience. I think some members
of the Committee may have interests to declare.
Bob Neill: I am currently a non-practising
barrister, but used to specialise in criminal law and I was in
the same chambers as Lord Morris, and still am.
Chairman: Mr Vaz?
Keith Vaz: I am an employed barrister,
and it should be noted I was Parliamentary Private Secretary to
Lord Morris for a year.
Q112 Chairman: Do you think, either or
both of you, that the role, and nature of the role, has changed
since you were Attorney Generals?
Lord Mayhew of Twysden: Chairman,
perhaps I might begin? I do not think it has changed in character.
I think that it has changed perhaps in scale in that he is responsible
for a few more things, but in character it remains the same. I
had the advantage of reading the lecture the present Attorney
General gave to Birmingham Law School, which I know you have seen,
and the role seemed to me to be very familiar as he described
it.
Lord Morris of Aberavon: Chairman,
I would agree on that. I think what has changed since Sir Peter
Rawlinson was the Attorney is that I suspect it was a slightly
more leisurely activity then, because he used to boast that he
went to every circuit in the land, except for some reason to the
Wales and Chester Circuit, to prosecute, which could not be done
now. I hesitated long and hard before taking the decision not
to prosecute personally in the second of the war crimes cases;
I could not really see myself being away for three months, including
a trip to Belarus, and carry on with the machinery of government,
and that is why it has become exceedingly difficult except for
very short matters. But I understand the present Attorney has
done very much better.
Q113 Bob Neill: I was interested
in that. I ought to say that Lord Morris led me on a number of
occasions when we were at the bar, but that is a concern. Is it
practical nowadays for the Attorney with the other burdens and
if, let's say, they are also a practising politician as well,
to be able to prosecute in high profile cases? Is it desirable
that Attorneys should still try and get out into court? Can they
do it? Have we really got the calibre of advocates who are likely
to be in the gene pool, if you like, that is available for selection
given the other constraints as well?
Lord Morris of Aberavon: That
is the big difficulty about the House of Commons and drawing attorneys
from the House of Commons because whether it is an industry or
whether it is trade unions it is exceedingly difficult to be reasonably
competent in one's own field and attend to one's constituency
and the House of Commons, particularly when there are sometimes
narrow majorities. I managed to do it, practice as such and be
a member of the House of Commons, by confining myself, as Mr Neill
would agree, to London and the home counties. If I had returned
to my native Wales it would have been sheer impossibility. Coming
back to the question, it is much more difficult but the present
Attorney has made valiant efforts. I did four or five heavy cases,
one on human rights in the House of Lords, one in the International
Court of Justice in the Hague which went on for some time, I think
a week, which was not too bad, when Yugoslavia sued a number of
nations for the bombing of Yugoslavia; there were a number of
instances in Strasbourg but those were very short and comparatively
easy, but the big one which I would have liked to have done would
have been the war crimes one.
Q114 Bob Neill: Lord Mayhew, does
that perhaps make a point; that it is perhaps not practical to
do trials, you cannot really do work in the first instance as
Attorney any more, and it has been confined to appellate work?
Lord Mayhew of Twysden: I think
it has become progressively more difficult. It was and remains
important that the Attorney, if he can without prejudice to the
rest of his work, get into court. He is by title Leader of the
Bar and it does have its importance but I think it is a second
order importance, if I can put it like that. I found it very difficult
and I had been away from the bar for four years doing other ministerial
jobs before I became Solicitor General but I did as a law officer
make it my business, with great difficulty, I may say, to appear
in both the European courts in civil matters and in the High Court
here, and I think I am right in saying the Court of Appeal. I
never appeared before the Judicial Committee in the House of Lords,
but I found it was important and I did it as a matter of policy.
Q115 Chairman: Why was it important?
Lord Mayhew of Twysden: I think
it is important because it does emphasise the characteristic of
the Attorney General that he is a representative of an independent
profession, Leader of the Bar, and he brings hopefully with him
the product of that position—that is to say, an ability
to put the public interest in its right place which is pre eminent,
and to separate issues in an analytical way. But it is a second
order importance. I know that Lord Rawlinson used to be very critical
of Attorneys subsequent do him for not going into court much,
and I very much agree with what Lord Morris has said about the
valiant efforts the present Attorney General has made. I think
it is very good. I do think it is a trifle more easy if you are
in the House of Lords rather than having a House of Commons constituency.
Q116 Chairman: One of the other things
you do as an Attorney General is sometimes attend the Cabinet,
although the present Attorney General seems to attend the Cabinet
all the time. Is that not quite a significant change?
Lord Mayhew of Twysden: Yes, I
think it is, and I am afraid I think it is a bad mistake for the
policy to change. In my time it was the established convention
that you were of Cabinet rank but not a member of the Cabinet,
and you went by invitation to deal with the specific item of business
and then you left. I think that was important because the members
of the Cabinet have to accept legal advice from the Attorney and
I think it would be more difficult for them to do so if he had
been present taking part in a contested debate about policy because
they might be tempted to think that if he gave them adverse advice
to their political interest that was simply reinforce the view
he had taken in the course of argument. I think it is important
that he should only go to deal with legal matters by invitation.
Lord Morris of Aberavon: I would
agree. I do not know technically whether the present Attorney
is a member of the Cabinet or attends Cabinet. Certainly I was
never a member of the Cabinet and I never attended Cabinet but
I did attend the War Cabinet on Kosovo on many occasions and,
of course, many Cabinet committees, and I agree with Lord Mayhew
that I think the last instance of anyone being a member of the
Cabinet is FE Smith, and that is going back to about 1920 or thereabouts.
I take the general view that he should be available to attend,
and when Sam Silkin was Attorney he would wait for his item outside—I
was in Cabinet—and be called in for Item No 3, and then
once Item No 3 or whatever it was was disposed of, Mr Silkin,
the Attorney, would depart. Of course, if you can sit in Cabinet
then there is a lot of preparatory work which is an additional
burden which I would not wish, as Attorney, to do.
Q117 David Howarth: What would the
item be when you attended? Would Item 3, for which the Attorney
attended, be specifically about legal advice on a matter, and
then you would attend for that and then when legal advice was
given and discussed you would leave, or would the item be the
whole policy decision in an area, about which legal advice had
been requested.
Lord Mayhew of Twysden: In my
time it could be both, I think. I suppose a specific example might
be whether a particular policy proposal would be consistent with
our international obligations under the European Convention, it
might be, or under any of the other pieces of legislation binding
us in European law, or it might be something which, having seen
the Cabinet agenda, you knew was coming up and you thought it
would be advantageous to go and make a contribution on the basis
of the law. It could be either.
Q118 David Howarth: And in effect
you could request to go.
Lord Mayhew of Twysden: Yes, certainly.
Lord Morris of Aberavon: Yes.
Likewise on Kosovo there were lots of legal issues. That lasted
69 days and for 68, or the first 68, I was consulted almost every
day on the detail of targeting and whether it fell within the
Geneva Convention. That was a very heavy burden. So when the War
Cabinet met one was able to bring colleagues up to date, not only
of the actual legal issues which were those of that morning but
also on how things had gone so far, from my point of view.
Q119 Mrs James: I would like to expand
a little bit on the role of the Attorney General particularly
as a member of the House of Commons. What do you think of the
potential consequences for both the accountability and the independence
of the post, should the Attorney not be a member of the Commons,
or vice-versa should, or should not, be a member of the
House of Lords?
Lord Mayhew of Twysden: I have
to say that I think it is preferable by quite a distance that
he should be in the House of Commons, the reason being that the
accountability to Parliament of the Attorney General seems to
me to be absolutely key to the public confidence that anybody
needs who exercises his jurisdiction. That is not to say that
the House of Lords is not a good second best, it is, and it depends
of course considerably on the calibre of the Solicitor General
who would then always be in the House of Commons, but the important
point it seems to me is that the House of Commons will always
insist, if it possibly can, upon having the actual decision-taker
stand at the despatch box and justify the decision. Having it
at second-hand will seldom be regarded as sufficient—so
it seemed to me on the basis of my experience, at any rate. The
corollary of that is that it is an enormous assurance to the holder
of the job we have both done that you are able, if you realise
a storm is brewing, to ask to come to the House of Commons and
make a statement and get in first, which I have done on more than
one occasion and have been very glad to be able to do so.
Lord Morris of Aberavon: There
was a general and well-founded belief in my time in the Commons
against a spending minister being in the House of Lords; the House
of Commons are responsible for supply. Likewise, as regards a
law officer, I was the last Attorney in the House of Commons,
and I complained to two, if not three, previous party leaders
about the absence of a follow-on or an absence of competition,
so far as I was concerned, so that the Prime Minister could choose.
This was the position and it may be improved now for all I know,
but the basic issue is the need for a parliamentary accountability,
and if I may, and I cannot improve on these words, I quote from
what Sam Silkin wrote in 1978, a very distinguished law officer.
If it were otherwise, he said, "to whom would the independent
non political law officer be accountable? If there were no minister
through whom he could be accountable we should have to invent
one and, if there were, we would have returned full circle, for
accountability without control is meaningless and whatever minister
was answerable for an independent law officer would in practice
have to control him, else we should have the semblance of accountability
and not the reality, and in my experience there is no more potent
weapon in a democratic society than the reality of accountability
to Parliament". I cannot improve on that.
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