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Law Officers

My Lords, I echo the gratitude expressed by the previous speakers to the noble Lord, Lord Rodgers, for initiating this debate. I, unlike him, am anything but learned in the law and we venture with rashness when we enter into a debate on the role of the law officers where it is predominantly lawyers who will be speaking. But I venture none the less because during the course of my career in Whitehall I became involved in affairs in which the law officers were also involved on a number of occasions, the two outstanding ones being the Westland affair and the Spycatcher business. In the first case, your Lordships will remember that a letter sent by the then Solicitor-General, who has just sat down, to the then Secretary of State for Defence was leaked to the Press Association. That was done without the agreement of, or consultation with, the Solicitor-General. The Attorney-General, who had just returned from convalescence, took the view that that was a serious breach of the rule of confidence, which is intended to protect the legal advice of the law officers to their colleagues in government. The Attorney-General insisted that the circumstances of the leak should be inquired into by the police, if not by the official machinery for inquiring into leaks. It did not seem to be a case for inquiries by the police. I already knew who had passed a copy of the letter to the Press Association. The interesting question was whether, and to what extent, the leak had been authorised, and by whom. I was not sure about the answers to those questions, and I undertook the inquiry myself. I made my report to the Prime Minister, and the main conclusions were reported by the Prime Minister in another place. It seemed to me that the law officers were standing on an important point of principle: the legal advice of a law officer to a Minister should be, and should continue to be, confidential. If a matter might lead to litigation, it must surely be right that legal advice to one party should not be disclosed to the other. Those events support me in my belief that the principle that the first duty of a law officer is to give the best advice he can to his colleagues on the application of the law in any given situation is correct. In preparing and giving that advice, as previous speakers have made clear, he is not subject to collective responsibility as a Minister. He is exercising sole personal responsibility for his advice. He is accountable to Parliament for that and, as the noble and learned Lord, Lord Mayhew of Twysden, has said, that is an important matter. However, he is not in the same sense accountable to his colleagues. He is, in my belief, entitled to receive and consider points and circumstances to which his colleagues may wish to draw his attention. He may even be entitled to consult them. He is not required, however, to pay any regard to the views they express or the points and circumstances they bring to his attention, if he considers them irrelevant to his considered legal advice. He must not allow them to affect his judgment of what his legal advice should be. I can remember no occasion, in my experience, in which a law officer has failed strictly and stoutly to observe the principle of his independent personal responsibility, and his independence of the Government as a whole. It would be in no-one’s interests that the law officer should not strictly observe that principle. If he were not to do so, the value of his legal advice to his colleagues would be destroyed, and their confidence in him gravely undermined. So long as the principle is strictly observed, it does not seem to me that it matters that the law officers are also members of the Government. Indeed, I believe that, as previous speakers have said, that arrangement is positively advantageous. As a colleague, and one bound by the Privy Counsellors’ oath—as well as by the Official Secrets Act—he can be trusted with information and intelligence that could not, perhaps, be properly or safely entrusted to any lawyer who was not a member of the Government. I shall not try to recount to this House every aspect of the Spycatcher affair. I am sure that your Lordships will be grateful to me for being thus far economical with the truth. Your Lordships will remember that the Government wished to prevent the publication of Spycatcher, which contained not only serious breaches of secrecy in relation to intelligence on security matters, but also many completely false statements—notably in the allegations of a conspiracy in the security service to undermine the Government of the day. Mr Peter Wright eventually admitted that that conspiracy was confined to one former member of the security service, namely himself. As the author lived in Australia and the book was to be published there, it was not possible to proceed against either under the Official Secrets Act, the jurisdiction of which is limited to the United Kingdom. So the Government were obliged to proceed by seeking an injunction in the Australian court for breach of confidence under the civil law relating to confidentiality. The Attorney-General at the time of course had a say in the preparation of the affidavit which was to be submitted to the Australian court. There were two questions: by whom should that affidavit be signed; and who should go to New South Wales to give evidence in support of the affidavit? It was considered that one person needed to be responsible both for signing the affidavit and for giving evidence. There were, and have continued to be, suggestions that that person should have been the Attorney-General. It was agreed in government that that would not have been appropriate: it was not for the Attorney-General to appear as a witness for the Government, answering questions of fact or intelligence. We could not ask the Director-General of the Security Service to undertake this responsibility because in those distant times the existence of the Security Service was still not officially acknowledged. It could have been a Home Office Minister or a senior official. In the end the Prime Minister asked—not instructed—me to do it. Without much enthusiasm I agreed that that was probably the right choice in the circumstances. The point here is that it would have been wrong for a law officer to do the job. It might have been possible for a law officer to be the lawyer who led for the Government in court, but that was not seriously suggested. It would not have been appropriate for a law officer to lead for the Government in civil proceedings in an Australian court. It would have been possible to apply to the Australian court for rights of audience for a member of the English Bar. That was seriously considered. In the end it was decided, for political and other reasons, that it was preferable to retain an Australian barrister. The main point here is that it would not have been appropriate for a law officer to give evidence to the Australian court on matters of fact and confidence. I have listened to the debate so far, and, looking back on my experience, my conclusion is that on the whole it ain’t broke and we don’t need to fix it. The Attorney-General has a clear place in the scheme of things, which has stood the test of time, and, provided that the law officers and their ministerial colleagues bear in mind the importance of their legal advice being independent, and of their being thus far outside the role of collective responsibility, the system that we have has done us pretty well in the past and will continue to serve in the future.