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Law Officers

My Lords, I think that I am the only solicitor to be involved in this debate. I regard that as a great privilege. The view expressed by the noble Lord, Lord Armstrong of Ilminster, was highly interesting. He was a senior civil servant and has given the House a valuable insight into how the Civil Service looked at those important matters. We have five former Attorneys-General in this House at present and five former Solicitors-General. All have enriched the governments in which they have served, as well as the offices in which they have participated. In saying that, I am not being economical with the truth. Two of those former law officers are particular friends of mine: my noble and learned friend Lord Morris of Aberavon, who has spoken in the debate, and my noble and learned friend Lord Archer. I hope that those friendships will long endure, although I depart from some of the things that they said. However, none of them can compare with Solicitor-General Andrew Dymore, who served for no less than 18 years from November 1485. Some may say thank God that that precedent is not being repeated. Francis Bacon, as Attorney-General, once said that the office was,"““ the painfullest task in the realm””." I do not think that he was thinking of being the Member for Hackney, Central at the time. Sir Patrick Hastings said that to be a law officer was to be in hell. Whatever may be the case, the House is indebted to the noble Lord, Lord Rodgers, for stimulating this debate. As has been said, the role of the Attorney-General has evolved over many centuries, starting as far back as the 16th century in its more recognisable form. For many years, the law officers were located in the House of Commons. Indeed, when I was there, it was thought impossible that they should be anywhere else. However, during the time that I have been here, we rejoiced in the fact that the noble and learned Lord, Lord Falconer, has been Solicitor-General. The late Gareth Williams, whom we all mourn and who was an excellent Leader of the House, was also Attorney-General. The noble and learned Lord, Lord Goldsmith, serves as Attorney-General in this House. All of them have established the highest possible standards, but not without controversy. I depart from the view that has been expressed today in certain measure. At present, we have an Attorney-General here and a Solicitor-General in the House of Commons. Both Houses have benefited from that. Both enable debates to be initiated about law and both are able to answer questions about the role of the law officers. This is the first time that a woman has been appointed as a law officer: I refer to Harriet Harman. She was a solicitor. That is also unprecedented in this context. That involved making a remarkable gesture to the profession of solicitor. Like both individuals and companies, the Government are entitled to the benefit of a legal adviser, whose advice they can take or reject. That legal adviser operates according to a well defined code and the Government, like the lay litigant, should in my view be able to receive legal advice in confidence. Of course, besides being titular head of the Bar, the Attorney-General is a Member of either House of Parliament. In that connection, Cabinet Committees perform more ably when they are advised by a law officer. We should take into account the fact that the law officer has other people advising him or her. While the Attorney-General may not be a member of the Cabinet, he is involved in a department’s legal problems when special difficulties or matters of real significance arise—as I recall that they did when I was privileged enough to hold the office of Parliamentary Under-Secretary of State in charge of companies, aviation and shipping. In particular, I welcomed the idea of being advised at that time by law officers. The    Attorney-General can also be involved in constitutional affairs which may touch on international relations, as we heard today from the noble and learned Lord, Lord Morris of Aberavon. Essentially, however, the Attorney-General makes up his own mind and is under no duty to obey anybody else—not even the Prime Minister. What he must do, as the noble and learned Lord, Lord Mayhew of Twysden, said, is to act in a quasi-judicial way. What, then, is the role of government vis-à-vis the law officers, apart from what I have already said? Primarily, it is to listen and to question. Should they disclose their opinions? My own view is that detailed advice should not be publicly revealed, although exceptions have arisen when it has been considered expedient so to do. Although something of a rarity, having regard to the fact that the law officers are there to advise the government, the only way that the government seek to justify that exception is that the government alone can decide whether the opinion of the law officers should be disclosed, either wholly or in part. In 1971, the substance of the advice tendered to the government about the export of arms to South Africa under the Simonstown Agreement was given. In two cases, involving the Scott inquiry and the Factortane case, the views of the law officers were given but the advice was not, and both cases amounted to judicial proceedings. Even so, I would wish to avoid the inevitable controversy. In other words, I would prefer a situation where under no circumstances would any part of the law officers’ opinion, or a summary of that opinion, be disclosed. That is itself a controversial view, I know. We are in a bit of a mess at present, and the more speedily that can be resolved the better.