Examination of Witnesses (Questions 172-179)
MR MICHAEL WILLS MP
29 APRIL 2008
Q172 Chairman: I am delighted to welcome Michael Wills, who is the Minister of State at the Ministry of Justice, to continue our discussion about the draft Constitutional Renewal Bill that is before us now and aspects of it. Do you want to say something by way of introduction or do you want us just to ask our questions?
Mr Wills: I had understood you really wanted to talk about the review of the royal non-personal prerogatives so I was going to make a few remarks about that. However, I can see from your very interesting briefing note that you want to range far more widely than that in which case perhaps you would like just to crack on rather than hearing my rather restricted remarks on the prerogatives.
Q173 Chairman: It may add up to the same thing anyway. You heard the question that I asked at the end of the last session about the Attorney General's legal advice. They batted this to you. Why do we not just have you answer it?
Mr Wills: I think it is very important in such important issues for the life of our nation that Parliament and the people have a clear understanding about the legal basis on which the Government is proceeding. That I think is agreed generally. We all agree on that. There are particular problems in the full legal advice being put forward. Let me explain a little bit about what I mean by that because this goes to the heart of a very important issue in front of government at the moment in relation to Freedom of Information. It is our view that government is not the owners of such information. It is the custodian of it and that is a very crucial distinction, in my view. It means that there must always be a presumption that we release public information to the public. That is what we have done with the Freedom of Information Act. That is what the recent reforms that we have undertaken since this Prime Minister took office do, to extend the scope, to consult on extending the scope of Freedom of Information. It is done on that basis. Equally it means that there are times when it is in the public interest for that information not to be made publicly available. That is the basis on which we proceed. When we look at the detailed legal advice that the Attorney General gives the Government on this particular issue or more generally, I think we have to be clear that there are times when such advice would be inhibited in its full frankness if it was known that it was going to be made available for publication. That in the end is not in the interests of good government. It is not in the interests of the public. What the Government needs in these circumstances is full, frank, uninhibited, unbiased, objective advice. Knowing that the full advice, every sentence of it, would be made publicly available could inhibit that and that in the end, in our view, is not in the public interest.
Q174 Chairman: We do not want to revisit Iraq but the Government with its welcome commitment to involving Parliament in these decisions now—obviously the question arises about the legal advice that is available to Parliament in those situations. It becomes untenable, does it not, for government to say, "We are going to invite Parliament to give a view on war and peace but we are not going to invite it to see the legal basis for our position"?
Mr Wills: With respect, that is not what I said. I think it is important that Parliament is given the legal basis on which we are proceeding. I was drawing a distinction between a statement of the legal basis which would be a full, frank statement of the basis on which we are proceeding and the verbatim, full transcript of the Attorney General's advice. There is a distinction there and that is the distinction that I am seeking to draw. I absolutely agree with you that Parliament should be given the legal basis on which we are proceeding and on which any government is proceeding.
Q175 Chairman: The reason for not having the full statement of the Attorney General's advice is what?
Mr Wills: It is what I have just endeavoured to set out. In the case of legal advice given by the Attorney to the Government, if it was known that that was going to be made fully publicly available, all the details of a legal opinion which can follow convoluted argument in the full knowledge that bits of it might be seized upon by some of the less benignly intentioned sections of our democracy, that might inhibit the frankness and objectivity of the advice being given. That is not in our view in the public interest. It is in the public interest that Parliament and the people should have the legal basis on which we proceed.
Q176 Mr Prentice: Surely it is important to follow through the logic of the legal advice? If the summary is a faithful representation of the full advice, why can we not have the full advice when we are talking about sending our military to war?
Mr Wills: It is a crucially important decision. It is absolutely vital that government has access to the fullest, frankest, often perhaps unwelcome advice, whether it be from lawyers or from military experts. If the process risks prejudicing the frankness of that advice, the objectivity of that advice, there is a problem. I think it is clear that any lawyer, the Attorney General or whoever, knowing that their full legal opinion following the logic of their argument all the way through, is going to be put in full in the public domain, not necessarily as we all know happens treated objectively and faithfully in the public domain, could well end up being inhibited. It could have what we call a chilling effect on the advice. This is a delicate balance. I understand the scepticism about this and it is important that the legal basis is given to Parliament. We do not think that fundamentally distorts the process.
Q177 Mr Prentice: I understand that but Peter Hennessy, who knows the internal wiring of the British Government like no one else, said it was so important that if the legal advice was not made available by the Government to Parliament then Parliament should appoint its own chief legal adviser, who would offer advice to Parliament on whether we should go to war.
Mr Wills: I am afraid I have not seen his evidence.
Mr Prentice: Am I misrepresenting him?
Q178 Chairman: No.
Mr Wills: Was he saying precisely that it was very important that every word of the legal advice was disclosed or there should be the legal basis, because there really is a difference.
Q179 Mr Prentice: We do not want to return to Iraq, but it is important. The context was that Peter Hennessy back in 2003 said there was an abandonment of due process. At the time the decision was taken to go to war, there was not the full legal advice. There was only the summary, the Attorney General was present and so on. It is I suppose learning from that experience that we were taken to war after due process had been abandoned. That is why he comes on so strongly about Parliament having the right to demand full legal advice that was preferably given to the Cabinet by the Government.
Mr Wills: On the fundamental point about the importance of due process in this and in every other important area, we are in complete agreement. That is one of the fundamental drivers of this bit of legislation and a lot of the Governance of Britain. It is to introduce system and process into the operation of government. It is the essence of the prerogative powers that they have been largely unfettered and they are not subject to that kind of due process. That is precisely what is driving us in this area on the fundamental point. On the point of detail about whether due process depends on the full legal advice being given in all its logic, every word of it, or whether an honest, open, legal statement completely consistent with that legal advice but not actually a transcript of it would fundamentally compromise due process I think we disagree on, if that is what you are arguing, that it is absolutely essential that the full legal advice be disclosed rather than the legal basis for the proposed action. We disagree, I am afraid.
| 
