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Lord Lyell of Markyate: My Lords, would the noble Lord give way? I think he is slightly confused, as in 1964 I had just left Oxford. I think the noble Lord is referring to somebody other than the Lord Lyell of Markyate, which is me.
Lord Rodgers of Quarry Bank: My Lords, forgive me. I should say that in 1992 the Attorney-General—now the noble and learned Lord, Lord Lyell of Markyate—needed to say of the Maastricht Treaty that he was "independently and dispassionately" giving legal advice to the Government, a statement which did not end the argument.
The legality of the use of force against Iraq has been and remains a major issue causing problems for the present Attorney-General. On 1 March this year, the noble Lord, Lord Skidelsky, again asked the Government to publish the full text of the Attorney-General's opinion. This arose from a recent claim in the Guardian newspaper that the Government had manipulated the legal justification for war and put pressure on the Attorney-General. The noble and learned Lord, Lord Goldsmith, declined, saying three times that,
was that military action was lawful. Inevitably, that will not be the end of the matter.
On a different matter, the noble and learned Lord wrote to the Independent on 22 October—seven weeks ago—about an allegation that he had bowed to political pressure not to prosecute a tragic shooting. In that he drew on what he called the classic statement made by the Attorney-General, Sir Hartley Shawcross, in 1951 about the independent role of the senior law officer.
Those are only a few among a long list of occasions when the dual role of the Attorney-General of the day led to a challenge or provoked a political dispute. I am not saying, except in the case of Sir Patrick Hastings, that over the years the Attorney-General has abused his position. I do not know. I have the highest regard for those Attorney-Generals and other law officers
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I have known personally in either House. The fact remains that all too often doubt lingers in the minds of other politicians, the public and the press. It would be far better for the law officers to be happily outside government as they are in a number of countries.
A visitor from, say, a former Soviet republic somewhere in the Caucasus is brought by the British Council to Westminster to learn about democracy. "Please tell me", he respectfully asks, "about the role of the Attorney-General". "His job", his host replies, giving him lunch in the House of Lords, "is to give his genuinely held, independent, legal advice to the Prime Minister of the day". "Then he must be a neutral figure, expert in law and above politics?". "Well, not exactly, he is a senior member of the government of the day, attending Cabinet and dealing with the sometimes irresponsible Opposition". The visitor is now looking a little puzzled. He says, "But who hires this talented man, looking both ways; is it Her Majesty or the Lord Chief Justice?" "Er . . . no, it is the Prime Minister". "But, forgive me, then who sacks him?" "The Prime Minister", says the host, "but occasionally he promotes him". "Thank you" says the visitor, taking a second glass of claret. "Your British democracy is reassuringly familiar".
11.47 pm
Lord Morris of Aberavon: My Lords, I congratulate the noble Lord, Lord Rodgers, on initiating this debate. I fear, as he anticipated, that I will disagree with his conclusions.
The office of Her Majesty's Attorney-General can be traced back to the 13th century, when charged with the responsibility of upholding the King's interests in the courts when the King himself could not appear. I am proud to have held that office. The office has changed substantially since the time when the noble and learned Lord, Lord Rawlinson, was able to say that he had prosecuted on each and every circuit save for Wales and Chester. The Attorney-General's department is where the roles of Whitehall, Westminster and the legal profession meet, and the demands of the government machine and statute are ever-growing. I confess that the problems of international law took a disproportionate amount of my time.
The Attorney-General has a very wide portfolio—quasi-judicial, professional and political. The noble Lord, Lord Rodgers, said, "Why have him at all?", if I may paraphrase him. "Why should a politician preside over these duties?". In 1614, the other place resolved, when Sir Francis Bacon was elevated from Solicitor-General to Attorney-General, to accept Bacon's presence in that Parliament,
That injunction was consistently broken for 385 years until I retired as Attorney-General, to be followed, for the first time, by two Members of your Lordships' House filling the role in succession.
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The reason for the absence of Commons Attorney-Generals at present is that the Commons has become so demanding that it is only with extreme difficulty that one is able to pursue a political career—including the demands of a constituency—and a legal career at the same time, with the time, care and attention necessary.
The same problem applies in other professions; there are no captains of industry in the Commons or eminent trade union leaders. There are, fortunately, signs of an improved pool of legal talent there now.
I believe fundamentally that the Attorney-General should be seriously involved, and experienced, in politics. I should very much prefer him to be a Member of, and accountable to, the House of Commons. That is in no way a reflection on present or recent holders of the office. If there is no-one of merit in the Commons, the Prime Minister has no choice but to elevate a practitioner of eminence to your Lordships' House and appoint him Attorney-General.
Why has he to be accountable? In many respects he is just like any other Minister of the Crown, and subject to collective responsibility, he to other Ministers and they to him. However, because of those considerable areas where he is not acting as a Minister but exercising his own unique responsibilities as Attorney-General, he must be accountable somewhere. Such are his onerous tasks that I believe it is inescapable that he must be directly responsible to Parliament. That is what the noble Lord has not addressed.
As Attorney-General, he is responsible for prosecutions, either those by statute that he authorises himself, or those by the Director of Public Prosecutions. Among many cases, I had to authorise personally by statute a prosecution under the War Crimes Act, although I had spoken and voted against the measure. I tried to approach the papers with the same care as if I were to prosecute it myself. That, of course, took many a long hour, as did many of the other cases I had to authorise. I was tempted to prosecute it myself. It was my field—I had been a criminal lawyer all my life—but I just could not visualise a scene where I could be away from my duties to the government machine for two or three months to do the case properly. It is no good opening a case and walking away from it. One had to do much more than that. As it happened, the case included a visit to Byelorussia. I regretted that, and I was sorry, but it was just not conceivable to be away for three months. Those are the current pressures of the government machine.
In some cases, the Attorney-General has to exercise his discretion. There is no rule that every case has to be prosecuted. He decides, acting quasi-judicially, whether it is in the public interest to do so. He is on his own. It has been said that he may consult colleagues. I may be wrong, but I have no recollection of consulting anyone—or, indeed, of anyone canvassing me. Prosecution is an independent function, not a governmental one. Given this onerous role, has he not to be directly accountable to Parliament? An
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honourable Member may raise any prosecution that has taken place on the adjournment, and I well remember my noble friend Lord Campbell-Savours doing so extremely effectively. As Attorney-General, I replied, and rightly so.
The Attorney-General is also the Government's principal legal adviser, and I happen to hold the orthodox view that the relationship between the Attorney-General and the Government in this context is that of a solicitor and client. It is an error, except in extraordinary circumstances, to reveal legal advice, whether it is that of the Attorney-General or of any other lawyer. He is the adviser to the Commons and to the Speaker. He advises on peerages, and advises the Sovereign in a personal capacity. Until recently, he was a member of the Commons Privileges Committee.
Above all else, though, the Attorney-General is the guardian of the public interest. That sounds awfully pompous. He will intervene in the public interest in litigation between other parties. Some difficult medical cases come to mind. He may refer unduly lenient sentences to the courts. That is a really hot potato. Week after week, it demands a lot of the Attorney-General's time, particularly in cases of causing death by dangerous driving, where there is considerable family anguish because of the loss of a dear one. No amount of punishment can bring back the lost member of the family. The help of an MP is enlisted and he can raise the matter on the Floor of the other place. As a lifelong politician/lawyer, I would not wish to lose that kind of accountability.
Every Attorney-General in his time attracts a degree of controversy. But over the centuries, the office has weathered the storms. A senior legal adviser once told me, "If you are not in the news as Attorney-General, you are doing well". Turn the Attorney-General into a paid official, however eminent, but who is not a practising politician and Member of either House, and you lose the vital link of accountability. The office has been entrusted to the Attorney-General, and it his duty to carry out that role.
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