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Law Officers

My Lords, I am glad to have the opportunity to take part in the debate, and I too congratulate the noble Lord, Lord Rodgers of Quarry Bank, on initiating it with the points that he made. I entirely agree with the noble and learned Lord, Lord Morris of Aberavon, and my noble and learned friend Lord Mayhew of Twysden that the key to this debate is accountability. The noble Lord, Lord Rodgers, is asking us to account not only for what we did as Attorneys-General but for the principle which justifies our standing in that position as Members of this House. It is not new to question that. Indeed, in a number of Commonwealth countries the Attorney-General is a public official. Interestingly, Lord Shawcross, himself a very distinguished Attorney-General, by the late 1970s, came to ask, in the context of the Clay Cross affair and the Gouriet case, whether the role should not be removed from Members of either House and given to a public official. I am quite sure that Lord Shawcross was mistaken in that view, but it highlights the importance of the question. I am grateful to have an opportunity to join with my noble and learned friends in seeking to justify our role. The role of the law officers is twofold. They are the government’s chief legal adviser and what are sometimes described as the ultimate prosecuting authority. In the jargon of the statute, they superintend the work of the Director of Public Prosecutions, the director of the Serious Fraud Office and—I think still directly, but potentially not so—that of the Director of Public Prosecutions in Northern Ireland. Since the Matrix Churchill case and the Scott report, they have a closer role in superintending the prosecuting role of HM Customs & Excise. The Attorney-General has a general purview over all prosecutions and has the power, deriving from his ability to issue what is called a nolle prosequi, to stop any case. That is a very important power. Of course these powers are all exercised in accordance with the public interest, of which he is the guardian, and I agree with the noble and learned Lord, Lord Morris, that one of the recent attributes of that is the power to send a criminal case to the Court of Appeal to consider whether a sentence is unduly lenient. First exercised by my noble and learned friend Lord Mayhew, it is an important and responsible power over which we all agonised carefully before using, but it has had a most salutary effect in striking the correct balance when imposing the right level of criminal sentence. That is a level set not by the law officers but by the courts. That is right. The role is sometimes criticised on intellectual or theoretical constitutional grounds as offending against the doctrine of the separation of powers, as is the role of the Law Lords. In this context, for those who wish to follow it further, I commend strongly a fascinating and scholarly article written by the noble and learned Lord, Lord Cooke of Thorndon, both a Law Lord and a former senior judge in New Zealand. It can be found at page 49 of the Law Quarterly Review for 2003. It is a fascinating exposition and points out how misunderstood the doctrine of the separation of powers is and how much too rigid some academics believe it should be considered to be. In fact, the positions of both the Law Lords and the law officers do not offend against it. I come to the key point of accountability. I hope the analogy is considered suitable, but it is important to say that our constitution is in one sense pyramidal in shape. In the end, everything rises to the top where it is answerable to Parliament. The only proper exceptions to that are decisions in individual legal cases which are decided by the Law Lords in their judicial capacity. The Law Lords know perfectly well how to separate any political aspects of a case or any political role that they might play in the work of this House and their judicial role. In their integrity they stand second to none in Europe; indeed, I would say second to none in the world. I learnt from my very early days in Parliament—I had hardly arrived here before the then Attorney-General, then Sir Michael Havers, asked me to be his PPS—that there is an ethos in the Law Officers’ Department. Let us remember that law officers are appointed by the Prime Minister and, as the noble Lord, Lord Rodgers, pointed out, can be sacked by the Prime Minister. But they cannot be told how to do their job. They cannot be told what legal advice they should or should not give. I am happy to say that that independence imbues the Law Officers’ Department. It imbues it today under the noble and learned Lord, Lord Goldsmith, as much as it imbued it in our day. I join my noble and learned friend Lord Mayhew in saying I will not countenance any attack on the integrity of the Attorney-General. Like those of us before him, he is placed in difficult positions. The facts put to him may be the subject of deep dispute in this House, but again I will countenance no attack on his personal integrity or on his high reputation as a lawyer. Where would we be if we were to substitute the law officers for a public official? I believe that we would be no better off; rather that we would be worse off. It is one of the reasons why I have anxieties about the system of appointing judges through an outside committee, a judicial appointments commission. The present commission has on it people of the very highest quality, and I suspect, hope and believe that in practice it will continue to maintain what has been a very high standard set by Lord Chancellors down the decades and centuries. But ultimately, and this is where the position of the Lord Chancellor is so important, it must be the Lord Chancellor who is answerable for judicial appointments, just as the Attorney-General is answerable for decisions on the public interest and on the legal advice he gives. I have two further points before I close. The first has nothing to do with this debate but it was raised in the recent terrorism debate. The noble Lord, Lord Brooke of Alverthorpe, was scandalised that I had not personally visited GCHQ. He said that it was scandalous to hear that in recent years Ministers with positions of power and responsibility for security might not have done so. The Attorney-General has neither the power nor is responsible for security. I and several of my noble and learned friends have sometimes worked closely with the security services and no doubt continue to do so. I know a certain amount about GCHQ but I had absolutely no ministerial responsibility for it. Secondly, I turn to the interesting point of the advice given with regard to the Maastricht treaty—this is just one example from my 10-year career as a law officer—which led to an all-night debate, a vote of confidence and then to litigation over the advice I had given sponsored by the late Jimmy Goldsmith and brought by the noble Lord, Lord Rees-Mogg. That emphasises a point made by all speakers in the debate. I came before the House of Commons, once sitting beside my noble friend Lord Hurd when he used the advice I had given, and once giving the advice again. I was answerable to the House. The House could question me. If I got it wrong or if, heaven forbid, I had been persuaded in any way by the politicality of the matter, I could have brought down the government. Absolute integrity was necessary. I will not go on, though I could say more about this, except to say that I was happy to find that when it eventually came to court, the court supported the advice I had given. The key point to make is that one must have a law officer who is accountable and can be brought before either House of Parliament. It is very desirable if he can be in the Commons rather than the Lords, but if he cannot, we have the finest substitute.