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Lord Maclennan of Rogart: My Lords, can the noble and learned Lord say whether he sees a principle that makes it appropriate for the Attorney-General to be sitting in one House of Parliament, but not the Lord Advocate, the Scottish law officer who has not identical but largely comparable powers? Why one constitutional principle for England and Wales, and another for Scotland?

Lord Morris of Aberavon: My Lords, if my memory serves me correctly, for many years when I was in the other place, the Lord Advocate was not a Member of either House. I fear that that problem arose because no Scottish lawyer has succeeded in winning a place in the lower House and none had been appointed to this place. It was because of a dearth of talent, I suspect, that such people had not been able to achieve political office.

My time is running out. The Attorney-General in previous times was nicknamed the "bulldog of the Crown". When Lord Elwyn-Jones was Attorney-General he preferred to call himself "the corgi of the
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constitution". I would avoid animal parallels, but say that the Attorney-General is a constitutional safeguard of some importance.

Lord Wedderburn of Charlton: My Lords, perhaps I may intervene if the noble and learned Lord is still semi-recumbent. Does he not agree that it is now fundamentally more difficult for someone who now takes a seat in the House of Commons than at the time of his very distinguished career, there and as Attorney-General, to excel at that career while being a leader at the criminal Bar and, indeed, a leader in international law, given that we have seen such expansion and difficulty in both subjects, which it is essential for the Attorney-General to command? Is that not a factor which the noble and learned Lord's marvellous disposition did not highlight as much as the facts of life of change?

Lord Morris of Aberavon: My Lords, I think I made that point earlier in that it is difficult to recruit eminent members of the legal profession to the House of Commons because of the demands. Now that there are signs of an increased pool of talent, I hope that again there will be an Attorney-General in the House of Commons. But the Attorney-General is not expected to be an expert in all fields. I was only a criminal lawyer, but I had the advantage of expertise, of Treasury counsel, and a whole range of sources of advice, if required.

11.59 am

Lord Mayhew of Twysden: My Lords, I, too, thank the noble Lord, Lord Rodgers of Quarry Bank, and congratulate him on initiating this debate. It is important that the role of the law officers should be examined and ventilated. I declare an interest or whatever interest that I suppose may derive from the fact that for four years I was Her Majesty's Attorney-General and for five years before that I was Solicitor-General. Perhaps that interest is mitigated by the fact that I tried very hard to avoid becoming a law officer. I thought that it was a bourn from which no traveller returned. Fortunately for me I was wrong about that. I tried hard not to become one, and I certainly have no ambitions to become one again. That is not to say, however, that I think that the role of the Attorney-General should be revised. Difficult though it undoubtedly is, it suits our needs rather well and it certainly serves the public interest better than any alternative.

It is a great privilege to follow the noble and learned Lord, Lord Morris of Aberavon, with whose speech I wholly agree. Nine minutes is a touch too short to attempt to cover the whole field, tempting though it is, and in particular the issue of the non-publication of the terms—the terms as distinct from the essence—of the Attorney-General's advice to his ministerial colleagues.

I agree with the noble and learned Lord that the heart of the role of the Attorney-General is his accountability to Parliament. That is central. I sympathise with the difficulties which the visitor
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from the Caucasus would have in understanding the role of the Attorney-General, but if that had been explained in the way that the noble Lord, Lord Rodgers, described, he might have been reassured.

Let us look at the prosecuting function of the state. At its head stands the Attorney-General. He is answerable first and foremost to the law, as the noble and learned Lord, Lord Morris, said. Surely no arm of the state is more invasive of individual liberty and the well-being of the citizen than this one. We have only to call to mind how even the receipt of a summons for the most minor of infringements is liable to cause real anxiety. The more serious the proceedings, the greater the risks and the fears, and they speak for themselves.

I suggest and contend that fairness and sound judgment of the public interest must characterise the way in which the prosecuting arm of the state is used. It surely follows that whoever has ultimate authority over it—and somebody must have it—must be answerable to Parliament, unless we really are to depart from the fundamental principles of our democracy. I do not mean in the form of some official, however immaculate, giving evidence to a Select Committee. Parliament would never stand for that as being the limit of his accountability, nor would it swallow having some Minister acting as a rapporteur, the reader of a brief—a take-it-or-leave-it message vouchsafed from on high. Accountability for fairness and for soundness of judgment will be demanded in person, at the Dispatch Box, where the sharpest darts can come from behind and where you may find your prospects suddenly rearranged.

That is a very salutary feature of our system, but no system guarantees perfection. The noble Lord, Lord Rodgers, was right to refer to the Campbell case. What he said about Sir Patrick Hastings was true; that is, that you have to go back 80 years to find such an example. Sir Patrick agreed that no prosecution that seemed likely to be sensitive in a political sense should in future be started without the prior approval of the Cabinet—if one can believe that—and he pulled a prosecution that was proving embarrassing.

I am glad to say that when all that became known, the Government fell. It was not a question of waiting 50 years. Very shortly after that, the Government fell, and the prospects of all their members, as well as those of Sir Patrick Hastings, were indeed rearranged. I suggest that that makes the point, rather than diminishes it. You have to go back 80 years to find such an example of an Attorney-General falling short of the required judicial standard. I wish to record at this point my complete confidence in the integrity of the present incumbent.

Should someone else be answerable to Parliament? If it cannot be an official, for the reason I have suggested, and it should be a parliamentarian, then surely it ought to be a Minister because it is a Minister, rightly, who is answerable for the Crown Prosecution Service. We have moved away from the days when chief constables were the clients right through to, and
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including, the trial. It is a Minister who superintends the Director of Public Prosecutions and who is responsible for the code for Crown prosecutors.

If it is not the Attorney-General, as it is at the moment, then who should it be? I cannot think that we would be very comfortable with any Home Secretary. Should the Minister responsible for the police now answer for prosecutions? He might have politically important targets to meet, perhaps demanding lower thresholds for prosecutions, and I do not think that that would be very agreeable. Nor could it be the Lord Chancellor, in whatever transmogrified form he may assume in future. He will be responsible for appointing the judges and he cannot go in for prosecuting as well.

If it has to be a Minister, I suggest that it has to be the Attorney-General. It is he, after all, who, alone among Ministers, is responsible to the Crown, then to the law, and only then to his political colleagues. The problem perceived is that parliamentary accountability is not a sufficient safeguard for his propriety.

In concluding, I will counter that, but, by way of background, I want to say that it does not stand alone. When I was Attorney-General, I told my officials that if my legal secretary—the number one—at any time believed that I, or any Attorney-General, was acting other than with proper quasi-judicial scruple, it would be his duty to go to the Cabinet Secretary and, through him, to the Prime Minister. That is the extent to which our constitution has evolved. I am sure that I was right, and it is not a negligible matter.

As to the efficacy of having to answer to Parliament, I am well aware of the searching quality of that experience. If I may have half a minute's indulgence, I shall mention that on three occasions, in difficult circumstances, I went to the House of Commons to volunteer a Statement about my ministerial stewardship. To do that when in trouble and not to wait to be dragged there is always wise, but not always enough. Time does not permit a résumé of any of these episodes, but the relevance of each is that I was always very clear that it was my integrity, my competence and my judgment that were under scrutiny. The House of Commons knows how to do that very well, as does your Lordships' House.

I was conscious of all those things and, although I suppose I must have passed the test, I had the best of reasons for knowing that the accountability of the Attorney-General to Parliament was for real and that it was, as it still is, very much for the public good.

12.08 pm

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