---

Lord Lyell of Markyate: My Lords, I am glad to have the opportunity to take part in the debate, and I too congratulate the noble Lord, Lord Rodgers of Quarry Bank, on initiating it with the points that he made. I entirely agree with the noble and learned Lord, Lord Morris of Aberavon, and my noble and learned friend Lord Mayhew of Twysden that the key to this debate is accountability.

The noble Lord, Lord Rodgers, is asking us to account not only for what we did as Attorneys-General but for the principle which justifies our standing in that position as Members of this House. It is not new to question that. Indeed, in a number of Commonwealth countries the Attorney-General is a public official. Interestingly, Lord Shawcross, himself a very distinguished Attorney-General, by the late 1970s, came to ask, in the context of the Clay Cross affair and the Gouriet case, whether the role should not be removed from Members of either House and given to a public official. I am quite sure that Lord Shawcross was mistaken in that view, but it highlights the importance of the question. I am grateful to have an opportunity to join with my noble and learned friends in seeking to justify our role.

The role of the law officers is twofold. They are the government's chief legal adviser and what are sometimes described as the ultimate prosecuting authority. In the jargon of the statute, they superintend the work of the Director of Public Prosecutions, the director of the Serious Fraud Office and—I think still directly, but potentially not so—that of the Director of Public Prosecutions in Northern Ireland. Since the Matrix Churchill case and the Scott report, they have a closer role in superintending the prosecuting role of HM Customs & Excise. The Attorney-General has a general purview over all prosecutions and has the power, deriving from his ability to issue what is called a nolle prosequi, to stop any case. That is a very important power.

Of course these powers are all exercised in accordance with the public interest, of which he is the guardian, and I agree with the noble and learned Lord, Lord Morris, that one of the recent attributes of that is the power to send a criminal case to the Court of Appeal to consider whether a sentence is unduly lenient. First exercised by my noble and learned friend
 
15 Dec 2005 : Column 1382
 
Lord Mayhew, it is an important and responsible power over which we all agonised carefully before using, but it has had a most salutary effect in striking the correct balance when imposing the right level of criminal sentence. That is a level set not by the law officers but by the courts. That is right.

The role is sometimes criticised on intellectual or theoretical constitutional grounds as offending against the doctrine of the separation of powers, as is the role of the Law Lords. In this context, for those who wish to follow it further, I commend strongly a fascinating and scholarly article written by the noble and learned Lord, Lord Cooke of Thorndon, both a Law Lord and a former senior judge in New Zealand. It can be found at page 49 of the Law Quarterly Review for 2003. It is a fascinating exposition and points out how misunderstood the doctrine of the separation of powers is and how much too rigid some academics believe it should be considered to be. In fact, the positions of both the Law Lords and the law officers do not offend against it.

I come to the key point of accountability. I hope the analogy is considered suitable, but it is important to say that our constitution is in one sense pyramidal in shape. In the end, everything rises to the top where it is answerable to Parliament. The only proper exceptions to that are decisions in individual legal cases which are decided by the Law Lords in their judicial capacity. The Law Lords know perfectly well how to separate any political aspects of a case or any political role that they might play in the work of this House and their judicial role. In their integrity they stand second to none in Europe; indeed, I would say second to none in the world.

I learnt from my very early days in Parliament—I had hardly arrived here before the then Attorney-General, then Sir Michael Havers, asked me to be his PPS—that there is an ethos in the Law Officers' Department. Let us remember that law officers are appointed by the Prime Minister and, as the noble Lord, Lord Rodgers, pointed out, can be sacked by the Prime Minister. But they cannot be told how to do their job. They cannot be told what legal advice they should or should not give. I am happy to say that that independence imbues the Law Officers' Department. It imbues it today under the noble and learned Lord, Lord Goldsmith, as much as it imbued it in our day. I join my noble and learned friend Lord Mayhew in saying I will not countenance any attack on the integrity of the Attorney-General. Like those of us before him, he is placed in difficult positions. The facts put to him may be the subject of deep dispute in this House, but again I will countenance no attack on his personal integrity or on his high reputation as a lawyer.

Where would we be if we were to substitute the law officers for a public official? I believe that we would be no better off; rather that we would be worse off. It is one of the reasons why I have anxieties about the system of appointing judges through an outside committee, a judicial appointments commission. The present commission has on it people of the very highest quality, and I suspect, hope and believe that in practice
 
15 Dec 2005 : Column 1383
 
it will continue to maintain what has been a very high standard set by Lord Chancellors down the decades and centuries. But ultimately, and this is where the position of the Lord Chancellor is so important, it must be the Lord Chancellor who is answerable for judicial appointments, just as the Attorney-General is answerable for decisions on the public interest and on the legal advice he gives.

I have two further points before I close. The first has nothing to do with this debate but it was raised in the recent terrorism debate. The noble Lord, Lord Brooke of Alverthorpe, was scandalised that I had not personally visited GCHQ. He said that it was scandalous to hear that in recent years Ministers with positions of power and responsibility for security might not have done so. The Attorney-General has neither the power nor is responsible for security. I and several of my noble and learned friends have sometimes worked closely with the security services and no doubt continue to do so. I know a certain amount about GCHQ but I had absolutely no ministerial responsibility for it.

Secondly, I turn to the interesting point of the advice given with regard to the Maastricht treaty—this is just one example from my 10-year career as a law officer—which led to an all-night debate, a vote of confidence and then to litigation over the advice I had given sponsored by the late Jimmy Goldsmith and brought by the noble Lord, Lord Rees-Mogg. That emphasises a point made by all speakers in the debate. I came before the House of Commons, once sitting beside my noble friend Lord Hurd when he used the advice I had given, and once giving the advice again. I was answerable to the House. The House could question me. If I got it wrong or if, heaven forbid, I had been persuaded in any way by the politicality of the matter, I could have brought down the government. Absolute integrity was necessary. I will not go on, though I could say more about this, except to say that I was happy to find that when it eventually came to court, the court supported the advice I had given.

The key point to make is that one must have a law officer who is accountable and can be brought before either House of Parliament. It is very desirable if he can be in the Commons rather than the Lords, but if he cannot, we have the finest substitute.

Baroness Farrington of Ribbleton: My Lords, if the noble Lord, Lord Goodhart, will forgive me, I rise to remind all noble and learned Lords that when the clock indicates nine minutes, the speaker's time has finished. The number does not mark the beginning of their final minute. That is a universal, slight reprimand across the House. We are very short of time.

12.40 pm

Lord Goodhart: My Lords, I thank my noble friend Lord Rodgers for introducing this debate which is a matter of constitutional significance. My views on this subject are personal and I am not speaking in my capacity of party spokesman on DCA matters.
 
15 Dec 2005 : Column 1384
 

As most speakers have noted, we have had a law officer as a member of your Lordships' House only since 1997—first a Solicitor-General, then an Attorney-General. That in a sense is accidental because of the declining number of lawyers of stature in active practice in the House of Commons. As the noble and learned Lord, Lord Morris of Aberavon, said, that is due to the change in the nature of the role of MPs. Constituency business now takes up a large part of their time and it is impossible to act as a good constituency member and to perform the duties of an MP in the House of Commons and to conduct an active practice. It is very different from the old days when F E Smith would appear in the Royal Courts of Justice. When the court rose for the day he would walk down to the Palace of Westminster, stopping at the National Liberal Club on the way to relieve himself in the belief, as he alleged, that it was a public convenience.

The second cause of change in the role of the Attorney-General is the Constitutional Reform Act. That is a little surprising because the Constitutional Reform Act says nothing whatever about the Attorney-General or his role. But by changing the role of the Lord Chancellor, it has indirectly and consequentially changed the role of the Attorney-General. The Lord Chancellor has lost his role as head of the judiciary in England and Wales and as a member of the Appellate Committee of your Lordships' House. He has also lost most of his role in judicial appointments. He no longer has to be a lawyer or a Member of your Lordships' House. His role is now mainly as a departmental Minister. That increases the constitutional importance of the role of the Attorney-General as the senior lawyer involved in government.

During the debates on the Constitutional Reform Act, I argued that the Lord Chancellor should not necessarily be a member of your Lordships' House. I now argue that the Attorney-General should be a member of your Lordships' House—indeed if a Member of Parliament at all.

The main role of the Attorney-General is as legal adviser to government and on occasions as the government's advocate in court. He has a departmental role as head of the prosecution system—but that is a small department. It is constitutionally important to keep the prosecution system at arm's length from the government. A failure to recognise this brought down the first Labour government in 1924. The government's legal adviser must give wholly independent advice. To do so, he must be free from conflicts of interest and be as insulated as possible from pressure from the government.

It is therefore plainly desirable that the Attorney-General should not be concerned about the impact his advice might have on the electors in his own constituency or about the impact his advice might have on his future ministerial career. I am not suggesting that any of the noble and learned Lords in your Lordships' House who have held that office—or any previous one since Patrick Hastings—has acted improperly in that respect. But it is a good idea to remove the risk wherever it can be.
 
15 Dec 2005 : Column 1385
 

I am not suggesting that the Attorney-General should be someone approaching the end of his career—as is sometimes said of the office of Lord Chancellor. That would limit the office of Attorney-General to the relatively elderly. But the future career of an Attorney-General should be outside ministerial office—as a practitioner, as a judge or in some altogether new field. Those who argued during debates on the Constitutional Reform Act that the Lord Chancellor should be a lawyer and a Member of your Lordships' House were half right: they attached the right conditions to the wrong person—to the Lord Chancellor instead of the Attorney-General.

As my noble friend Lord Rodgers said, there is a strong case for going further—arguing that the Attorney-General should not be a Member of either House or indeed a governmental Minister but should hold an independent office appointed by the Prime Minister. I have some trepidation in supporting my noble friend's view in the face of speeches from three former Attorneys-General. As the noble and learned Lord, Lord Lyell, said, that is the position in several countries which have legal systems derived from the British system—or, to be more accurate, the English system. Among Commonwealth countries, that is true in India and among other countries, in both Ireland and Israel. I have had the opportunity of meeting Attorneys-General from those countries. The arrangement appears to work well in all those countries. I am not yet convinced that this is desirable for the Attorney-General in England but my views are moving in that direction. It is at least a clearly arguable decision and well worth further study.

The main argument in the other way is that the Attorney-General must be accountable to Parliament. I do not believe that is necessarily so. So far as the role of the Attorney-General as legal adviser to the government is concerned, that advice is given to the government as the executive and not to Parliament. The Attorney-General cannot advise both the government and Parliament on the same issue because that would be an obvious and unacceptable conflict of interest. Where accountability lies is here: the government have to be accountable for their decision whether or not and how far to act on the Attorney-General's advice. But it is not appropriate for the Attorney-General to be accountable to Parliament for that advice. After all, it is given as advice and not as a decision.

There is a stronger case for saying that the Attorney-General should be accountable to Parliament for his decisions on prosecution matters. But even here there are arguments that that should not be so. These decisions are different from those taken by other Ministers because the Attorney-General must act independently from the government and is plainly not accountable to the Prime Minister for those decisions. If the Attorney-General is not accountable to the Prime Minister, then there is some doubt whether his accountability should properly lie to Parliament.

The question therefore arises whether it is not at least equally appropriate and perhaps more effective that any checks on improper prosecution decisions
 
15 Dec 2005 : Column 1386
 
taken by the Attorney-General—or decisions where it is alleged he has acted improperly—should be exercised by judicial review of his decisions rather than by Parliament. There is room here for future discussions. The issue that has been raised by my noble friend is important and I support it to a considerable extent. In future we will need to look at this matter in more detail.

The figure nine has not yet come up on the annunciator, so I am glad to sit down before my time is up.

12.48 pm

---