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House of Lords

Monday, 13th October 2003.

The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.

Prayers—Read by the Lord Bishop of Southwark.

Iraq: Rules of Engagement

Lord Campbell of Alloway asked Her Majesty's Government:

    Whether rules of engagement have been ordained for all coalition forces in Iraq concerning the opening of fire other than in self-defence, when death or injury may be occasioned, on refusal to stop a vehicle at a road block; and, if so, whether compliance with such rules affords any immunity from legal process.

The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, it has been the practice of successive United Kingdom governments not to comment on certain aspects of operational policy, including rules of engagement. Any such information could potentially be of use to the enemy and put the lives of our servicemen and women deployed on operations at risk. I am, therefore, withholding this information under exemption one of the code of practice on access to government information. The United Kingdom's rules of engagement do not strictly in law provide UK service personnel with immunity from the UK legal process. However, they are robust and are drawn up in accordance with international and domestic law. Therefore, acting within the rules is very likely in practice to provide protection from prosecution.

Lord Campbell of Alloway: My Lords, I thank the noble Lord for that somewhat enigmatic reply. May I ask what is the actual position of our Armed Forces in these lethal hostile conditions—some 20 attacks a day, no civil power—when they, in the course of duty, open fire to enforce a road block, to search for weapons, or to guard essential facilities from sabotage? What is the position?

Lord Bach: My Lords, I am sorry if the noble Lord thought that my reply was enigmatic. I hoped that it was clear. The noble Lord asks a good second question but it is one that he knows, as he asks it, that I am not able to answer in any detail at all. He himself has had distinguished careers both in the Armed Forces and in the law and he will know that it is the combination of those two things that make it difficult for me to say any more than I did in my original Answer, save to repeat that the rules of engagement are indeed robust.

Lord Astor of Hever: My Lords, in the light of the first part of the Minister's response to my noble friend

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Lord Campbell of Alloway, will he consider an off-the-record briefing for both opposition defence spokesmen and those in the House who need to know about the matter?

Lord Bach: My Lords, I am grateful to the noble Lord who was good enough to advise me beforehand of the question that he might ask. That question is currently being considered by the Ministry of Defence. I shall, of course, write to the noble Lord, to his colleagues on the Liberal Democrat Benches and to noble Lords on the Cross Benches as soon as a decision is reached. We shall try to be as sympathetic as we can.

Baroness Carnegy of Lour: My Lords, I believe the Minister said in his first Answer that if troops kept within the rules that was very likely to afford protection. Why is it not certain to afford protection?

Lord Bach: My Lords, the reason it cannot be certain in law is because rules of engagement are for guidance only and do not constitute law, which is for the courts to determine. I shall try to assist by making the distinction between immunity from legal process—which is the subject of the Question—where there can be no guarantee that legal process may be instituted, and practical consequences. Where a member of the Armed Forces acts within the rules of engagement—that could, of course, be a matter for the court eventually to have to decide—the matter is unlikely to go to court and almost certainly would not result in a finding of liability or guilt.

Lord Hannay of Chiswick: My Lords, will the noble Lord be so kind as to explain what in the circumstances of the Iraq of today constitutes the enemy?

Lord Bach: My Lords, the potential enemy are all those, wherever and whoever they are, who seek to engage British forces in a hostile manner.

Iraq: Legal Advice

2.40 p.m.

Lord Goodhart asked Her Majesty's Government:

    Whether they will publish the full text of the advice given to them by the Attorney-General on the legal basis for the use of force against Iraq; and the instructions for the giving of that advice.

The Lord President of the Council (Baroness Amos): My Lords, there is a long-standing convention adhered to by successive governments, and reflected in paragraph 24 of the Ministerial Code, that legal advice from the Law Officers is not publicly disclosed. This is consistent with paragraphs 2 and 4d of the Code of Practice on Access to Government Information.

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The Law Officers advise the Government in confidence. It is very important that both the legal adviser and the client should be able to give and receive advice candidly and freely on the understanding that it will not be disclosed.

Lord Goodhart: My Lords, on 17th March we were given a one-page summary of the views of the Attorney-General. The Government have now given an enormous amount of information—which no doubt they were not legally obliged to give—to the Hutton inquiry. Why will not the Government now produce the full legal advice on the basis of which we went to war, which is surely an even more important question that that being considered by the Hutton inquiry? Are the people of this country really going to have to wait for another 30 years before we find the answer to that question?

Baroness Amos: My Lords, I hope that in my opening Answer I made the position clear. The Attorney-General's advice on international relations, security and defence is confidential and we never disclose or comment on advice given by the Attorney-General. So far as we are concerned, the Government's policies on Iraq are legal and they comply with our international obligations.

Lord Lester of Herne Hill: My Lords, legal professional privilege can properly be claimed by the Government as by any other client on behalf of their legal adviser, the Law Officer. However, is the Minister aware that legal professional privilege can always be waived? Would she not agree that, as my noble friend said, by relying in part on 17th March on a snippet or gobbet of advice from the noble and learned Lord the Attorney-General, the Government have waived their privilege? If not, will she explain why?

If the rule is so inflexible, will the Minister also explain why in cases such as Factortame the opinion of the Law Officers was fully disclosed to courts? In that case, their opinion was that the Merchant Shipping Act would be unlawful under Community law. The rule is not inflexible and rigid, as has been suggested.

Baroness Amos: My Lords, I am not a lawyer and cannot go into the details of the noble Lord's final point. I am not aware of the case to which he referred. If it has bearing on the matter, I shall be happy to respond to it. On his specific point on breaching the convention, I shall repeat what I said before. My noble and learned friend the Attorney-General made a statement on 17th March setting out his views on the legality of the use of armed force against Iraq, but his advice was not disclosed. I repeat: the actual advice that he gave to the Government was not disclosed. We are confident that our policies and actions in Iraq are right and consistent with our international obligations.

Lord Thomas of Gresford: My Lords—

Noble Lords: Oh!

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Lord Howell of Guildford: My Lords, we would like to have a say. Although in our view there was and is a robust case, under Articles 39 and 41 of Chapter 7 of the United Nations Charter, for getting rid of that madman and mass murderer—the world will be a better place still when he is dead—does the noble Baroness agree that much ambiguity remains, as the questions that she is receiving indicate? Would it not be better not only to publish a summary of the Law Officers' advice, despite it breaking precedent, but to have a thoroughgoing judicial inquiry—much wider than Hutton—so as to reassure the public and, even more importantly, the troops in Iraq of the rightness of our cause?

Baroness Amos: My Lords, the Government are absolutely convinced of the rightness of our cause. We have made that position clear time and again and will continue to do so. I said that in this House last week. The basis on which we went to war was that Iraq and Saddam Hussein flouted 17 UN Security Council resolutions with respect to weapons of mass destruction. That remains the case.

Lord Marsh: My Lords, does the Minister not agree that one of the significant differences between a democracy and a dictatorship is that a government's point of view alone should not be considered when a decision of such magnitude is taken?

Baroness Amos: My Lords, I totally agree. That is why we had debates in this House, a number of debates in another place, and a significant debate in the other place with a vote. It is the first time that we have had that.

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