Examination of Witnesses (Questions 140-143)
RT HON
LORD MORRIS
OF ABERAVON
KG QC AND RT
HON LORD
MAYHEW OF
TWYSDEN QC
28 FEBRUARY 2007
Q140 Keith Vaz: So she is wrong?
Lord Morris of Aberavon: Definitely
wrong, and this particular Damascene conversion baffles me, that
that is the basis of it; that it is an entirely a matter between
the Government and the Attorney and 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.
Q141 Keith Vaz: Lord Mayhew, do you
agree with that? Do you think there is a contradiction? Should
the advice be published? Is Harriet Harman wrong?
Lord Mayhew of Twysden: I think
the reasons that have been given to support the convention are
sound. There does have to be absolute candour in an advice if
it is to have maximum value, and for it to have maximum value
it must be based upon instructions from the client which, again,
are fully candid. I think that it is entirely proper that the
character of the advice given by the Attorney General should be
made public; I think that the doctrine is evolving and I think
the situation is evolving sufficiently to justify in what is called
a proper case the client, the Government, saying: Well, in this
case I am content that the full opinion can be made public, but
it is a matter of legal professional privilege; it is exactly
the same in character, as Lord Morris has indicated just now,
and I think there are good, sound, practical reasons in terms
of the value of the opinion that is going to be given for maintaining
the general rule, so I think she is wrong.
Lord Morris of Aberavon: And it
is for the client, which is the Government, to decide whether
to lift the prohibition. There may be cases, if our convention
on going to war comes to pass and is accepted by the Government
of the day—and it may well be at a later stage, then as
part of the Prime Minister's explanation to the House of Commons
as to going to war he may want to play all his cards, but he would
be the client, and he—
Q142 Chairman: The worry is that
he might not want to do so.
Lord Morris of Aberavon: Well,
but I would not object to it in principle. That is the general
rule that has prevailed, that it is a client/advocate relationship
which needs candour on both sides, and perhaps the parading of
facts, which might not always be advantageous to either.
Q143 Chairman: Lord Mayhew and Lord
Morris, thank you very much indeed for giving us a really interesting
session this afternoon. We now have the opportunity to ask the
Lord Chancellor the questions on which you were most interested
in hearing the answer. Thank you very much indeed.
Lord Mayhew of Twysden: I hope
the answer will be sustainable!
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