---

Lord Thomas of Gresford: My Lords, I, too, express thanks to my noble friend Lord Rodgers of Quarry Bank for introducing this debate. I have been saddened that, save for my noble friend Lord Goodhart, the debate has not by and large led to any suggestion of change. Yet the office of Attorney-General has evolved through history, and there is no reason to assume that it has reached perfection in the body of the noble and learned Lord, Lord Goldsmith, and will not evolve further. History, as your Lordships are only too well aware, has not prevented the radical reform of the position of Lord Chancellor.

The position of the Attorney-General has not been popular. It was written at the beginning of the 19th century that:

"Of all offices in the gift of the Crown, that of Attorney-General is perhaps least to be coveted; for whether the government be popular or unpopular, the person filling that place can scarcely avoid being the object of general dislike".

Contrasting the role of the Attorney-General with that of the Solicitor-General, the author went on to say:

"The Attorney-General stands forward, almost alone as the public spy, informer and prosecutor . . . and the wrath of the parties and the dislike of the nation at large are levelled principally against him whilst the Solicitor-General fights under his shield and sometimes appears not to enter into the contest at all".

It has not been the easiest of roles to fulfil. There has to be a tension between the duties and responsibilities owed by the individual who has held that position to the law, to the courts, to the executive, to Parliament, to his constituents—if he is a Member of the House of Commons—and to the political party to which he belongs. It illustrates the quality of the distinguished speakers in this debate that they have all walked that tightrope successfully.

Reference has been made by my noble friend Lord Rodgers and others to the withdrawal of the prosecution against the communist trade union leader, Mr Campbell, who was charged with inciting mutiny in the Army, and how that led to the fall of the Labour government after a censure Motion. Since that time, the Attorney-General has ceased to be a member of the Cabinet and has sought to be what Lord Shawcross,
 
15 Dec 2005 : Column 1395
 
described as "aloof and independent". There are three main aspects of his position. In an article published a year or two ago, Diana Woodhouse said:

"At times the Attorney General is required to represent the government interest and at times the public interest. These are not always the same, as indicated in Questions of Procedure for Ministers, which states: 'In criminal proceedings the Law Officers act wholly independently of the government. In civil proceedings a distinction is to be drawn between proceedings in which the Law Officers are involved in a representative capacity on behalf of the Government, and action undertaken by them on behalf of the general community to enforce the law as an end in itself'".

I will look at those aspects of the role of the Attorney-General, and suggest the possibility of change. My suggestions do not have the imprimatur of the Liberal Democrat assembly, meeting at some seaside resort; they are largely my personal views.

The departmental responsibility for the Crown Prosecution Service, other prosecuting bodies and the Treasury Solicitor, to ensure they deliver an effective and efficient service to the public and are properly resourced to perform their functions, draws the Attorney-General into areas of political controversy about the quality of the criminal justice system, and also into competition with other departments for cash. It is essentially an administrative role. I suggest that it is a significant area of administration which should be handed over to a Minister of justice—or whatever name one seeks to call a Minister; perhaps even Lord Chancellor in the current form—who is directly accountable to Parliament, as the noble Lord, Lord Morgan, said. I entirely agree with the noble and learned Lord, Lord Mayhew of Twysden, that such a Minister of justice should be co-operative with but completely independent of the Home Secretary and the Home Office, so that the administrative function could be put under a Minister directly accountable for administrative functions and for raising cash.

The guardian of the public interest aspect is a quasi-judicial role which ought not to be influenced by political considerations at all. Of course we all know that there have been controversies over prosecutions in the past. I mention them without seeking to say on which side of the argument I would have been or am, but your Lordships will recall Sir Michael Havers—as he then was—in 1975 attracting a great deal of criticism for his refusal to prosecute companies that broke the oil embargo in Rhodesia. On the other hand, in the 1980s he attracted public criticism for his prosecution of Clive Ponting in relation to his comments on the sinking of the "Belgrano". I suggest that decisions as to criminal prosecutions should be removed entirely from the political arena, so that they cannot be seen to be subject to political influences, and placed squarely into the hands of an independent Director of Public Prosecutions who does not change with a change of government and is not subject to dismissal by the Prime Minister in a government reshuffle. To that person would come an enhanced role: the consent to prosecution should be transferred,
 
15 Dec 2005 : Column 1396
 
as should the responsibility for intervening in private prosecutions or for entering a nolle prosequi where it is appropriate.

There are other government prosecutions which should be under the control of the Director of Public Prosecutions as an independent figure. The noble Lords, Lord Campbell of Alloway, Lord Astor of Hever and Lord De Mauley, have spoken of soldiers serving in Iraq. As noble Lords may know, I have an involvement in those cases and am therefore constrained from saying anything about them. I can say that I do not think there should be pressure in Parliament, one way or the other, upon the Attorney-General as to whether they should be prosecuted. It should be an independent decision taken by a Director of Public Prosecutions. He should be answerable for his position to that same Minister of justice, who can be accountable to Parliament.

I do not think that the Attorney-General is particularly accountable to Parliament, as it happens, in criminal prosecutions, because if the case is proceeding he will always say "It is sub judice, and I cannot discuss it". If the case has been concluded, then, as in the Williams case to which noble Lords have referred, the Attorney-General says:

"That was my decision. It was a decision taken quasi-judicially, and that is it. You can criticise it if you like, but that is as far as I am going to be accountable for it".

Of course I am not referring personally to the noble and learned Lord, Lord Goldsmith, but that is what every Attorney-General does in criminal prosecutions.

There is a large area where the Attorney-General makes decisions in the public interest which may have a strong political flavour: the protection of the courts through contempt proceedings, the protection of public rights through relater actions, in injunctive proceedings and so on. Here he exercises his own discretion which is not reviewable by the courts. For that area, it is right that the Attorney-General—the person in charge of those decisions—should be both a lawyer and a politician and that he should be personally accountable for the exercise of those discretions to Parliament, probably in this House as it is constituted. There have been controversies about the exercise of the injunctive power and reference has been made by the noble Lord, Lord Morgan, to the Crossman diaries case and by the noble Lord, Lord Armstrong, to Spycatcher.

Finally, on the question of confidential advice to the government, the Attorney-General stands as the head of the Government Legal Service which proffers independent advice to government Ministers. It is sought and given on a confidential basis subject to legal professional privilege. Surely, therefore, it is appropriate that the head of the structure should also be a civil servant, independent of government. In the Matrix Churchill case, the noble and learned Lord, Lord Lyell, was concerned to act on advice given to him by civil servants; I will not go into the controversy around that. But the controversy over the advice on the Iraq war depends on an implication, surely
 
15 Dec 2005 : Column 1397
 
unjustified, that the Attorney-General was put under political pressure to structure his advice in such a way as to give cover and legitimacy to the Iraq war. No doubt it is unfair, but I suggest that the public perception is that he is "one of them". What happens is that the Government say, "We're acting on legal advice. We can't reveal it" and they deflect responsibility and shelter behind the shield of the Attorney-General who is not permitted to reveal his advice.

I have suggested a certain number of possible routes to change the role of the Attorney-General, to deal with the functions in a different way and I again thank the noble Lord, Lord Rodgers, for giving me the opportunity of so doing.

1.32 pm

---