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Lord Morgan: My Lords, I begin with the proposition that this has been a great reforming and progressive Government in constitutional affairs. I regret the departure of my noble and learned friend Lord Irvine who has been an extraordinary figure in our constitutional history.

One of the principles the Government have embodied and put across is the independence of the representatives of the law, the officers of the law. This was spelled out admirably by my noble and learned friend Lord Falconer in our discussions about House of Lords reform and the importance of segregating the legal from the political. The Lord Chancellor will be detached from the judicial system—indeed he need not be a lawyer at all. There will now be a new Supreme Court that is independent from Parliament and the taint of political prejudice or compromise.

Yet we also have had in this valuable and fascinating debate the completely opposite principle—of legal officers, law officers, bringing these institutions together. They are both independent agents of the Crown embodying the public interest and, as my noble and learned friend Lord Archer of Sandwell observed in his Fabian pamphlet, party politicians with a political commitment in the cabinet are bound by collective responsibility. That is a clear constitutional principle.

There has been criticism of this for many years. The first criticism I recall—apart from, no doubt, Francis Bacon—was of Sir Rufus Isaacs in 1912. He was the first Attorney-General to sit in the Cabinet but was unable to give a legal opinion on whether Cabinet Ministers had or had not benefited from the purchase of Marconi shares because, of course, he was one of them. Very shortly as a result—or a reward—he became Lord Chief Justice, inspiring a famous poem by Rudyard Kipling.

This indicates the kind of complexities that can ensue. We have had variously Lord Simon, who was a Liberal, Lord Shawcross, who was Labour, and, most famously—nobody has referred to him—Lord Rawlinson, who issued a long statement about the desirability of avoiding the ambiguity of the role of the Attorney-General. Like the Civil Service and, as we saw in the Butler report, like the intelligence services, law officers should not be compromised by or subjected to political pressure. The Attorney-General's various roles are embodied in convention under our unwritten constitution—like Topsy, they
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just "growed"—and there is a tendency to view them perhaps in a somewhat Panglossian fashion; the best of all possible worlds.

The law officers are responsible for the conduct of the criminal justice system, the Directorate of Public Prosecutions, the Revenue and Customs agencies and so on. Many of these activities have a very strong and intense political involvement. It seems to me almost impossible that this should not impinge on the role of the law officers, however distinguished they may be. As Mrs Thatcher indicated in a speech on Westland, there has sometimes been pressure to bring things forward and out into the open.

But the main areas of contention historically have been where law officers have not taken action. We have heard much about the most famous Campbell case, which appeared to be one. Incidentally, I was sent by my noble and learned friend's office a splendid Sargent lecture by the Attorney-General. I agreed with every sentence of it except the sentence quoted from Dingle Foot, who got the Campbell case completely wrong. In a sense, Sir Patrick Hastings had sought out political advice. He had long talks behind the chair with Jimmy Maxton and listened to the very independent view of politics that he had.

Sam Silkin is the most famous recent Attorney-General and appeared in the Gouriet case, of which we have heard. Much of the debate after Lord Denning's famous condemnation concerned, in a sense, a different point: whether or not Lord Silkin was liable and accountable to the courts or whether he was accountable simply to Parliament, which is what he argued. The main issue—the circumstances under which Lord Silkin reached his decision—was not really gone into. There were pressures on a government, which had a social contract with the unions, not to pursue a case where there had clearly been a tampering with the mail services by a union. There appeared to be political involvement but this was not in fact discussed.

Lord Morris of Aberavon: My Lords, will my noble friend allow me—

Lord Morgan: There is not much time.

Lord Morris of Aberavon: My Lords, Lord Silkin was exonerated by a higher court. That should be said.

Lord Morgan: My Lords, I agree. I am sorry, I am afraid I did not mention it given the brevity of the time. I must ask for an extra 30 seconds. In discussing the question of accountability, of course, Lord Silkin was exonerated. But my point is that the circumstances in which the decision was not taken were not ventilated in the same way and therefore, in a sense, the wrong point was being discussed—at least from the point of view of my argument here.

But the most controversial issue is the advice of the Attorney-General. The Butler report has shown the many pressures on the Attorney-General—not only in this country but in the United States. I think I can
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safely say that in the case of Suez the wrong advice was given—or at least the wrong decision was taken—as a result of the Attorney-General's case. It is a problem. The case of Iraq involved issues of international law, which is a very specialist area, and the Attorney-General has his own expertise, which may or may not be in international law. It is not reasonable to put a very distinguished public man in such a dilemma. Is he a legal adviser—a public servant representative of the public interest—whose observations on disclosure are protected; or is he a Minister of the Crown and subject to the normal pressures for disclosure?

The idea that the Attorney-General is totally removed from politics—"a windowless monad", as my old friend Geoffrey Marshall said in one of his books—and completely sealed off from political obligation may be true, but it is very hard to convince the public. As the noble and learned Lord, Lord Falconer, said in this connection, it has to be seen to be true; it has to be seen that law officers are completely detached. It is not good enough to say, as Edwards says in his standard book on the Attorney-General, that we can rely on the character and personal integrity of all these admirable people. I am sure we can, but that is not the point. The point is the institutional arrangements, not the quality of the individuals concerned. They should not be in this situation. The kinds of circumstances in Iraq, the legality of the war, the treatment of British prisoners in Guantanamo and the bombing policy should be detached from political considerations.

In my view, there is much to be said for a law officer having the same degree of independence as the Governor of the Bank of England, who takes decisions about interest rates on professional grounds completely detached from political involvement. We should of course have a voice in Parliament but, in my view, that should be someone else. There is no time to discuss this, but I suggest that a department of justice or a Minister of justice, as obtains in many other countries, including the United States, would be far better.

The Attorney-General has an ambiguous role which is hard to sustain. In my view, it is another argument for an unwritten constitution, and the whole course of the debate has confirmed my view. In the process of it we have had a very distinguished man and an historic office—which goes back to the reign of Edward I—unfairly tainted by dragging them into the most catastrophic area of British foreign policy since the time of Suez.

12.57 pm

Lord Campbell of Alloway: My Lords, like other noble Lords, I thank the noble Lord, Lord Rodgers of Quarry Bank, for introducing the debate. I agree with everything that has been said by noble and learned Lords on both sides of the House. In particular, I agree that this is not an occasion to impugn the integrity of the noble and learned Lord the Attorney-General. I accept, certainly, that the essence of this is accountability, as has been explained. I am totally at
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a loss to understand the tutorials of the noble Lords, Lord Morgan and Lord Goodhart, as logical presentations leading anywhere.

This is also an occasion to thank the noble Lord for giving the House an opportunity to consider the exercise of the Attorney-General's supervisory role over those serving in our Armed Forces, on armed peacekeeping, who are charged with murder. And why? Because the morale of the Armed Forces has been greatly affected. Problems of retention and recruitment have been engendered under this regime, which will continue until about 2008 when the Armed Forces Bill takes effect.

What must be done to restore morale? As an immediate priority—and this in the wake of a series of these trials, after unjustified and unacceptable delay, on flawed evidence on which conviction could not be sought—consideration may well be given as to whether charges should be laid, and trials by court martial should now ensue, on independent advice as to the prospect of success on the quality of the evidence, and whether trials under the civil jurisdiction should now be entrusted to the High Court on the application of the Attorney-General.

Aspects of the extant supervisory regime, in which absolute discretion rubs shoulders with natural justice as reflected in the ECHR, have afforded this devastating loss of morale. What happens is that a resort to trial under civil law is granted by the Attorney-General within the closet of absolute discretion without notice, reasons, or any means of objection and is not open to challenge in the courts. If this role of the Attorney-General were to be exercised on application to the High Court, there would not only be a judicial determination of what is in the public interest as distinct from what could appear to be in the political interests of government; there would also be a judicial determination as to the quality of the evidence on which conviction is to be sought. Directions would be given by the High Court not only as to trial but for the avoidance of delay.

Urgent steps must be taken to instruct independent lawyers to examine all cases as to the questions to be asked on interview; to the charge; and to the sufficiency of the evidence. Under the extant regime, advice is given by the Attorney-General to the Armed Forces prosecuting authority not to arrange for trial in such cases by court martial, but in the civil courts. Why is such advice given? Is it given at the instigation of the Attorney-General, or at the request of the MoD at one of their regular meetings? It remains a matter of concern to our Armed Forces, that the MoD sought resort to the civil jurisdiction for reasons extraneous to justice, to placate pressure groups concerned with the death of Iraqi civilians and to safeguard the military justice system as reported in the Official Report on 14 July 2005, col. 1222.

Does it really make sense that there should be this close working relationship between the Attorney-General and the legal services of the MoD under which resort to the civil jurisdiction is sought and granted?
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Would it not be far more satisfactory if application were made to the High Court, which either granted or refused the application?

1.05 pm

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