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Law Officers

My Lords, I thank my noble friend Lord Rodgers for introducing this debate which is a matter of constitutional significance. My views on this subject are personal and I am not speaking in my capacity of party spokesman on DCA matters. As most speakers have noted, we have had a law officer as a member of your Lordships’ House only since 1997—first a Solicitor-General, then an Attorney-General. That in a sense is accidental because of the declining number of lawyers of stature in active practice in the House of Commons. As the noble and learned Lord, Lord Morris of Aberavon, said, that is due to the change in the nature of the role of MPs. Constituency business now takes up a large part of their time and it is impossible to act as a good constituency member and to perform the duties of an MP in the House of Commons and to conduct an active practice. It is very different from the old days when F E Smith would appear in the Royal Courts of Justice. When the court rose for the day he would walk down to the Palace of Westminster, stopping at the National Liberal Club on the way to relieve himself in the belief, as he alleged, that it was a public convenience. The second cause of change in the role of the Attorney-General is the Constitutional Reform Act. That is a little surprising because the Constitutional Reform Act says nothing whatever about the Attorney-General or his role. But by changing the role of the Lord Chancellor, it has indirectly and consequentially changed the role of the Attorney-General. The Lord Chancellor has lost his role as head of the judiciary in England and Wales and as a member of the Appellate Committee of your Lordships’ House. He has also lost most of his role in judicial appointments. He no longer has to be a lawyer or a member of your Lordships’ House. His role is now mainly as a departmental Minister. That increases the constitutional importance of the role of the Attorney-General as the senior lawyer involved in government. During the debates on the Constitutional Reform Act, I argued that the Lord Chancellor should not necessarily be a member of your Lordships’ House. I now argue that the Attorney-General should be a member of your Lordships’ House—indeed if a Member of Parliament at all. The main role of the Attorney-General is as legal advisor to government and on occasions as the government’s advocate in court. He has a departmental role as head of the prosecution system—but that is a small department. It is constitutionally important to keep the prosecution system at arm’s length from the government. A failure to recognise this brought down the first Labour government in 1924. The government’s legal advisor must give wholly independent advice. To do so, he must be free from conflicts of interest and be as insulated as possible from pressure from the government. It is therefore plainly desirable that the Attorney-General should not be concerned about the impact his advice might have on the electors in his own constituency or about the impact his advice might have on his future ministerial career. I am not suggesting that any of the noble and learned Lords in your Lordships’ House who have held that office—or any previous one since Patrick Hastings—has acted improperly in that respect. But it is a good idea to remove the risk wherever it can be. I am not suggesting that the Attorney-General should be someone approaching the end of his career—as is sometimes said of the office of Lord Chancellor. That would limit the office of Attorney-General to the relatively elderly. But the future career of an Attorney-General should be outside ministerial office—as a practitioner, as a judge or in some altogether new field. Those who argued during debates on the Constitutional Reform Act that the Lord Chancellor should be a lawyer and a Member of your Lordships’ House were half right: they attached the right conditions to the wrong person—to the Lord Chancellor instead of the Attorney-General. As my noble friend Lord Rodgers said, there is a strong case for going further—arguing that the Attorney-General should not be a member of either House or indeed a governmental Minister but should hold an independent office appointed by the Prime Minister. I have some trepidation in supporting my noble friend’s view in the face of speeches from three former Attorneys-General. As the noble and learned Lord, Lord Lyell, said, that is the position in several countries which have legal systems derived from the British system—or to be more accurate, the English system. Among Commonwealth countries, that is true in India and among other countries, in both Ireland and Israel. I have had the opportunity of meeting Attorneys-General from those countries. The arrangement appears to work well in all those countries. I am not yet convinced that this is desirable for the Attorney-General in England but my views are moving in that direction. It is at least a clearly arguable decision and well worth further study. The main argument in the other way is that the Attorney-General must be accountable to Parliament. I do not believe that is necessarily so. So far as the role of the Attorney-General as legal adviser to the government is concerned, that advice is given to the government as the executive and not to Parliament. The Attorney-General cannot advise both the government and Parliament on the same issue because that would be an obvious and unacceptable conflict of interest. Where accountability lies is here: the government have to be accountable for their decision whether or not and how far to act on the Attorney-General’s advice. But it is not appropriate for the Attorney-General to be accountable to Parliament for that advice. After all, it is given as advice and not as a decision. There is a stronger case for saying that the Attorney-General should be accountable to Parliament for his decisions on prosecution matters. But even here there are arguments that that should not be so. These decisions are different from those taken by other Ministers because the Attorney-General must act independently from the government and is plainly not accountable to the Prime Minister for those decisions. If the Attorney-General is not accountable to the Prime Minister, then there is some doubt whether his accountability should properly lie to Parliament. The question therefore arises whether it is not at least equally appropriate and perhaps more effective that any checks on improper prosecution decisions taken by the Attorney-General—or decisions where it is alleged he has acted improperly—should be exercised by judicial review of his decisions rather than by Parliament. There is room here for future discussions. The issue that has been raised by my noble friend is important and I support it to a considerable extent. In future we will need to look at this matter in more detail. The figure nine has not yet come up on the Annunciator, so I am glad to sit down before my time is up.