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Lord Kingsland: My Lords, I, too, thank the noble Lord, Lord Rodgers, for giving your Lordships' House an opportunity to debate this important issue today. As I understand it, the submission of the noble Lord, Lord Rodgers, together with those of the noble Lords, Lord Goodhart and Lord Thomas of Gresford, is that there is a fundamental conflict between the independence of the Attorney-General and his or her accountability to Parliament. With great respect to those noble Lords, I suggest that there is a misunderstanding about the nature of that accountability.

As has been said by a number of your Lordships, the Attorney-General has fundamentally two roles. First, he supervises the prosecutorial service and is responsible to Parliament for that. Secondly, he is responsible for giving independent legal advice to the executive. In being accountable for his supervisory role with respect to prosecutions, he is not accountable for the exercise of his prosecutorial discretion. He is accountable for the independence of his exercise of the prosecutorial discretion. That is the essence of his accountability. Parliament is not asking him to be responsible for the advice that he gives: it is simply requiring him to act independently.

That applies equally to his role as legal adviser to the government. Parliament is not requiring the Attorney-General to be responsible for the content of that legal advice. He gives that advice independently. What he is accountable to Parliament for with respect to that function is his independence in giving it. Parliament rightly requires the Attorney-General to be independent, but has no right whatever to require the Attorney-General to exercise his discretion in a certain way. In my submission, in both those cases accountability underpins the independence of the Attorney-General; it does not undermine it. At the same time, it enhances the legitimacy of the role.

I respectfully suggest to the noble Lord, Lord Rodgers, that his mistake—I apologise to him for suggesting that he has made a mistake in this case because he so rarely makes mistakes—is that he has not understood the role of constitutional conventions in relation to the relationship between the Attorney-General and Parliament. The noble Lord gave an
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illustration of a Russian visitor. What was missing from the noble Lord's explanation to the Russian visitor was the role of constitutional conventions—which guarantee the independence of the Attorney-General. We do not need these conventions to be written down in law because we all understand them. Indeed, every speaker has recognised the unimpeachable integrity of the present Attorney-General—a quality that has existed in all the Attorneys-General I can remember.

I have a gentle but nevertheless relevant criticism of the Liberal Benches in that noble Lords on the Liberal Benches made exactly the same mistake in relation to the role of the Lord Chancellor. They thought, "Here is a personage who combines a legislative, executive and judicial role all in one. That can't respect the fundamentals of the doctrine of the separation of human rights". But it did because of constitutional convention.

I now turn to that aspect of the Attorney-General's powers which relate to military issues—which was mentioned earlier in the debate most effectively by my noble friends Lord Astor of Hever and Lord De Mauley. My starting point in these remarks is an Answer by the noble and learned Lord, Lord Goldsmith, to a Question posed by my noble friend Lord Astor of Hever about the transfer of a case from the military prosecutorial hierarchy to the civil prosecutorial hierarchy. The noble and learned Lord said:

What authority does the noble and learned Lord have for making that statement? Is it made on a legal basis or is it based on the constitutional convention? If it is the latter, when was it established? Can the noble and learned Lord tell us which previous Attorney-General first asserted that this power was his?

It is clear that supervision entitles the noble and learned Lord to superintend the exercise of discretion by someone else, but it does not entitle the noble and learned Lord to substitute his own discretion for theirs. It certainly does not entitle him to exercise an executive role.

In the Gower-Hammond report at paragraph 9, the legal secretariat to the law officers highlighted the nature of the Attorney-General's superintendence. It states that the task of the Attorney-General in relation to the senior prosecutorial authorities, when his attention has been drawn to a problem and his advice sought on,

and on,

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is to give advice and guidance. It says,

There is nothing there about the exercise of prosecutorial discretion, let alone actually taking decisions about a prosecution. In my submission, the noble and learned Lord, unless he has a better explanation that the one he has given so far, does not have the constitutional power to transfer cases from the military prosecutorial hierarchy to the civilian prosecutorial hierarchy.

I have one further observation about the exercise of his power: in a Written Answer on 10 November in your Lordships' House, in relation to the referral to the CPS of the RTR soldiers, the noble and learned Lord said:

What on earth does "ventilating" mean? They could equally well have been "ventilated" in a court martial. Courts martial are covered by the press, and there is no reason why proceedings in a court martial should not be equally well "ventilated" as they are in a civilian court. Anyway, "ventilating" is an empty explanation for the exercise of this discretion that the noble and learned Lord thinks he has, although I doubt whether he has it.

What concerns me most about the way the noble and learned Lord has exercised his discretion in these cases is a good way of concluding my intervention. There is a big difference between a soldier committing an alleged offence while taking decisions in operational circumstances and a soldier committing an alleged offence in non-operational circumstances. Where offences are alleged when a soldier is on operational duty, the circumstances he faces are very different from those he faces when he is acting off-duty. That factor ought to be taken into account when one considers whether the military prosecutorial hierarchy or the civilian prosecutorial hierarchy is the appropriate route down which to go.

1.43 pm

The Attorney-General (Lord Goldsmith): My Lords, I start by congratulating the noble Lord, Lord Rodgers of Quarry Bank, on initiating this debate, and by thanking him for his choice of topic. I am also grateful to him for his courtesy in letting me know in advance the substantial issue that he wanted to raise.

I am glad my noble and learned friend and fellow law officer, the Advocate-General for Scotland, has been able to join me on the Front Bench for this debate. She is the first holder of this office, created at the time of the devolution settlement. She works closely with me in advising on legal issues as they affect Scotland, and, like me, has a statutory role in the
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operation of the devolution settlement under the Scotland Act. I very much welcome her advice, and hope that noble Lords would agree that having someone able to consider matters of law particularly pertinent to Scotland is an advantage.

To answer the intervention from the noble Lord, Lord Maclennan, who is not in his place, the Lord Advocate, now a law officer of the Scottish Executive, is in fact someone who sits in the Scottish Assembly, so there is no difference between the United Kingdom and Scotland there.

This has been a thoughtful and stimulating debate. I am genuinely grateful to all noble Lords who have contributed. We are particularly fortunate to have heard from noble Lords who have themselves held office as law officers, but the contribution of all noble Lords is much appreciated.

I have been privileged to hold the office of Attorney-General since June 2001. It is, as has already been said, an office in which the worlds of law and politics intersect. A range of views has therefore been expressed today on the role of the law officers, and how best this should be exercised. I want to start by saying how I see how I should exercise my role.

The overriding principles by which I have sought to do my job are these: to give legal advice and take decisions based on a scrupulous approach to the law and to the evidence; where I am exercising my public interest functions, to act on the basis of an objective, dispassionate assessment of the public interest, without regard to party political considerations; and to act independently, fairly and with accountability. I agree wholeheartedly with what the noble and learned Lord, Lord Mayhew of Twysden, said about the significance of fairness in all that the law officers do. Those are not principles for which I take any credit. I believe they are the principles upon which my predecessors have consistently acted in the past. Indeed I often ask myself, when facing a difficult decision: how would one of those predecessors—some of whom I am privileged to see in this Chamber today—have dealt with that issue?

One of my predecessors, Sir Robert Finlay, said at the beginning of the last century, when speaking of his responsibility for prosecution decisions:

I agree, and seek to follow absolutely that approach. It is inherent in this role that it sometimes falls to me to take controversial or unpopular decisions. One academic writer put it this way:

I make no complaint about that—it goes with the job. When confronted with decisions, there is only one course to take: to ignore the political clamour and the media comment, and try scrupulously to reach the right decision on the law and on the evidence. That is the basis upon which I have sought to operate, as I apprehend all my predecessors have.
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Turning to the principal thesis of Lord Rodger's argument, what are the arguments for and against having law officers who are members of the Government and who combine, as he puts it, the role of lawyer and politician? This something to which I have given much thought. My own judgment is that the advantages of the current system outweigh the disadvantages. I am reinforced in that belief by having heard support for that proposition from three former Attorneys-General—who have between them enormously long experience of the law officers' roles; although I have not counted them up, it is a substantial number of years—as well as from a former Cabinet Secretary and others in this House. That those who have been most closely associated with the work that is done see benefits in the present system seems to me to be a most important consideration.

Like the noble Lord, Lord Morris, I have reached the conclusion that it would not be right to turn this into a job for a paid official. To put it in the words of the noble and learned Lord, Lord Mayhew, the public interest is better served than by any other alternative.

I have listened with great care to the different points—and, they will forgive me for saying, the not unanimously held points—in the three important speeches made from the Liberal Democrat Benches. I notice that the noble Lord, Lord Thomas, seemed to believe not so much that some of the things that I do should not be done by someone in this House, by someone who is accountable to this House, but perhaps that person should be a different person or have a different title. I was interested in the comments of the noble Lord, Lord Goodhart, as well as those of the noble Lord, Lord Rodgers, as he expanded his argument.

I wish to develop the three factors that to my mind lead to the conclusion that the present system is in the public interest. First, law officers as Ministers have a key role in upholding the rule of law within government. Their advice carries greater weight because they understand and are part of the political process. Secondly, there are advantages in having law officers in both Houses of Parliament. We are answerable and accountable to Parliament for our work and are able to assist Parliament itself. The third consideration is that, as a Minister, I have been able to play a full role in the criminal justice system, particularly in reforming the prosecution service, which, as an outsider, I would not have been able to do. Let me develop those points within the time permitted.

I will deal first with the law officers' role as legal advisers to government. Of course only a small proportion of the legal issues that face Government are referred to the law officers. But by definition these are typically the issues of the greatest legal complexity, political sensitivity or carry the most far-reaching implications. I have sought to operate in that field in accordance with the principles that, first, my advice should be independent and impartial; secondly, that my approach should be constructive; but thirdly, that I should be prepared to give unwelcome advice and to stand firm where that is called for. As the noble Lord,
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Lord Armstrong of Ilminster, said, legal advice is not a matter for collective responsibility, but the decision of the law officers.

I conceive it as my job to help the Government achieve their policies, but only in a lawful and proper way, and where necessary advise against a particular course where it has fatal legal flaws. In that way the law officers are upholding their function of upholding the rule of law.

Discussion of the law officers' advisory role is complicated by the fact that their advice, like any other legal advice, is privileged and confidential; and remarks have been made about that today. One aspect of my advice—that in relation to the legality of military action in Iraq—has been the subject of particular comment, but as all noble Lords have accepted, for which I am grateful, that my integrity is not in question in any sense in this debate, there is no need for me to go over old ground as to why that advice was independent and genuinely my view.

There can be no greater responsibility for any lawyer than to have to take the decision on whether it is lawful for his country to go to war. That raises an important general point—the fact that the law officer plays that role shows the importance attached to the rule of law.

Are the law officers then in a good position to give legal advice to their colleagues? In my view they are best placed to give that advice, precisely because they are in the Government and understand the system of government and process of policy formulation which precedes the request for advice.

Occasionally, the law officers say no. That undoubtedly happens. Inevitably, those are not the occasions that tend to see the light of day outside Government, but they represent an important part of our function of upholding the rule of law. Would such decisions be better taken by someone who is a member of the Government or by someone who is outside? The noble and learned Lord, Lord Archer of Sandwell, in the same article, I think, to which the noble Lord, Lord Rogers, referred, said that this arrangement regarding the Attorney-General being a Minister is probably in the interests of the rule of law. Advice from a colleague in Government is less likely to be treated as impatiently as advice from a civil servant. Another writer put it more briefly by saying that Ministers are more likely to accept unwelcome advice because it comes from someone who they think is on their side, rather than someone who is perhaps there to impede the policy. I would strongly reject any suggestion that those inside Government or business are incapable of giving the most sincerely independent legal advice.

There are other important ways in which the law officers help to uphold the rule of law within government. We play a key role in relation to proposed government legislation. We are members of the Cabinet committee on the legislative programme and see all draft Bills. Although we are not of course responsible for the detailed content of every Bill, we look particularly closely at those questions which raise
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issues of legal policy or legality. Parliamentary Counsel can and do refer to us questions which, in their view, raise such issues.

There are other issues where my role as a law officer has been influential in upholding what I would regard as the rule of law, such as the former British detainees at Guantanamo Bay, which has been referred to. I took the role of negotiating for the Government. There were difficult issues of law and security. I am personally convinced that it would not have been possible to handle those discussions in the way I did, had I not been, and been seen to be, a member of the Government. Another example was the review of cases of infant deaths following decisions by the Court of Appeal in 2003—the convictions of Sally Clark and Angela Cannings, which led to my establishing a review which looked at nearly 300 cases, and which caused some to be referred to the Court of Appeal.

The second issue is the question of accountability and the law officers' role in relation to Parliament. There is a law officer in this House. Like the noble Lord, Lord Goodhart, and the noble Lord, Lord Clinton-Davis, I regard that as an advantage. Regardless of which House we belong to, we take our responsibilities and accountability to Parliament very seriously.

It goes beyond some of the points that have been made in this House. In a typical year the Solicitor-General and I answer some 400 Parliamentary Questions and reply to some 250 letters from Members of Parliament or noble Lords. We make ourselves available to Members of either House who wish to raise particular issues with us. Only yesterday, the Solicitor-General and I had a series of meetings with Members of Parliament, principally from Northern Ireland, concerning a particular prosecution last week.

While there is a need to avoid any conflict in the advice we give to government, that does not prevent us from giving advice and assistance to Parliament when it arises. For example, noble Lords may recall that I participated in a debate on the Children Bill, on the law in relation to smacking; I have given evidence to the Procedure Committee on the sub judice rule; I have given evidence to the committee on the Assisted Dying for the Terminally Ill Bill to describe and explain the law relevant to that; and, on occasion, I advise the Speaker of the House of Commons on matters of privilege and procedure, for example. I want to underline one point which perhaps is not obvious. The fact that I am a Member of this House, and very proud to be so, does not prevent me from assisting Members of another place, although I have no right to speak in that House.

Thirdly, I turn to the independent public interest role. As noble Lords have said, that extends beyond areas such as decisions or superintendence of decisions as to prosecution. Unduly lenient sentences were referred to by the noble and learned Lord, Lord Lyell of Markyate. That is an important and onerous responsibility, as the noble and learned Lord,
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Lord Morris, said, too. There are many examples, yet in all of these cases, we must act with scrupulous fairness and robust independence.

I want to say something about the prosecution decisions, which were the principal subject of the interventions by the noble Lords, Lord Astor of Hever, Lord De Mauley, Lord Campbell of Alloway, and, to some extent, that of the noble Lord, Lord Kingsland. Let us be clear about the following point. It has been suggested in the past that some prosecution decisions have been politically motivated or driven by considerations of political correctness. Those suggestions are wholly without foundation. I have the highest regard for the professionalism and dedication of our Armed Forces. Nearly 80,000 men and women have served with the greatest distinction in the most recent conflict in which they have been engaged. But nobody would suggest that any of them are above the law. Where credible accusations of criminality are made, surely it is right that they should be investigated and, should the evidence so disclose, be prosecuted. Who takes these decisions? The decisions of the Army Prosecuting Authority are taken on objective consideration of the evidence which is provided by the special investigations branch of the Royal Military Police. Those decisions are not taken by those with no understanding of the reality of military life. The service prosecutors are members of the Armed Forces, with experience of active service. As superintending Minister, I am from time to time consulted about particular cases, but I have never instructed the APA to prosecute or not to prosecute a case. In recent observations, Major General Sir Michael Jackson has very clearly and categorically described even as calumny suggestions that any of the people who are involved in those prosecuting decisions have been motivated by thoughts of political correctness or anything of that sort.

I have corresponded extensively with noble Lords, particularly with the noble Lord, Lord Astor. I have offered at least twice to meet with him and at least once to meet with other noble Lords who are interested in this reply. I have answered a number of Parliamentary Questions. Time does not permit me to answer all the questions except one—that of the noble Lord, Lord Kingsland—but I am happy to re-offer that invitation to meet if it would be helpful.

The noble Lord, Lord Kingsland, asked about the statutory basis. There is concurrent jurisdiction in relation to certain cases, where the courts of this country have the right to try individuals for offences committed abroad. The House of Lords has made it clear that whether it should be the civil authority or the military authority is a matter for discussion, but that ultimately the decision rests with the civil authority, which for these purposes I am.

On criminal justice policy and the role of the prosecutor, I emphasise that I firmly believe that had I not been a member of the same Government as my colleagues, I would not have had the same success in obtaining resources for the prosecutors—they have been substantially increased—or new powers or
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responsibilities for them. Like others who have spoken, I would not want to see the prosecutors under the purely political influence of a Home Secretary.

This role has attracted controversy over the years. My noble friend Lord Morgan described some of those incidents, although he was wrong to attribute the Suez war to the Attorney-General. According to the Cabinet papers which have been disclosed, it was the Lord Chancellor of the day who gave the legal advice for that. We do not need to refight that battle.

I conclude. This debate has been very helpful. I hope that it would assist a Minister from Russia who asked the questions which the noble Lord, Lord Rodgers, amusingly put. Like others, I take the view that if he were to read this debate and the contributions from all noble Lords, he would not give at the end the answer which the noble Lord, Lord Rodgers, suggested.

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