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Law Officers

My Lords, I begin with the proposition that this has been a great reforming and progressive Government in constitutional affairs. I regret the departure of my noble and learned friend Lord Irvine who has been an extraordinary figure in our constitutional history. One of the principles the Government have embodied and put across is the independence of the representatives of the law, the officers of the law. This was spelled out admirably by my noble and learned friend Lord Falconer in our discussions about House of Lords reform and the importance of segregating the legal from the political. The Lord Chancellor will be detached from the judicial system—indeed he need not be a lawyer at all. There will now be a new Supreme Court that is independent from Parliament and the taint of political prejudice or compromise. Yet we also have had in this valuable and fascinating debate the completely opposite principle—of legal officers, law officers, bringing these institutions together. They are both independent agents of the Crown embodying the public interest and, as my noble and learned friend Lord Archer of Sandwell observed in his Fabian pamphlet, party politicians with a political commitment in the cabinet are bound by collective responsibility. That is a clear constitutional principle. There has been criticism of this for many years. The first criticism I recall—apart from, no doubt, Francis Bacon—was of Sir Rufus Isaacs in 1912. He was the first Attorney-General to sit in the Cabinet but was unable to give a legal opinion on whether Cabinet Ministers had or had not benefited from the purchase of Marconi shares because, of course, he was one of them. Very shortly as a result—or a reward—he became Lord Chief Justice, inspiring a famous poem by Rudyard Kipling. This indicates the kind of complexities that can ensue. We have had variously Lord Simon, who was a Liberal, Lord Shawcross, who was Labour, and, most famously—nobody has referred to him—Lord Rawlinson, who issued a long statement about the desirability of avoiding the ambiguity of the role of the Attorney-General. Like the Civil Service and, as we saw in the Butler report, like the intelligence services, Law Officers should not be compromised by or subjected to political pressure. The Attorney-General’s various roles are embodied in convention under our unwritten constitution—like Topsy, they just ““growed””—and there is a tendency to view them perhaps in a somewhat Panglossian fashion; the best of all possible worlds. The law officers are responsible for the conduct of the criminal justice system, the Directorate of Public Prosecutions, the Revenue and Customs agencies and so on. Many of these activities have a very strong and intense political involvement. It seems to me almost impossible that this should not impinge on the role of the law officers, however distinguished they may be. As Mrs Thatcher indicated in a speech on Westland, there has sometimes been pressure to bring things forward and out into the open. But the main areas of contention historically have been where law officers have not taken action. We have heard much about the most famous Campbell case, which appeared to be one. Incidentally, I was sent by my noble and learned friend’s office a splendid Sargent lecture by the Attorney-General. I agreed with every sentence of it except the sentence quoted from Dingle Foot, who got the Campbell case completely wrong. In a sense, Sir Patrick Hastings had sought out political advice. He had long talks behind the chair with Jimmy Maxton and listened to the very independent view of politics that he had. Sam Silkin is the most famous recent Attorney-General and appeared in the Gouriet case, of which we have heard. Much of the debate after Lord Denning’s famous condemnation concerned, in a sense, a different point: whether or not Lord Silkin was liable and accountable to the courts or whether he was accountable simply to Parliament, which is what he argued. The main issue—the circumstances under which Lord Silkin reached his decision—was not really gone into. There were pressures on a government, which had a social contract with the unions, not to pursue a case where there had clearly been a tampering with the mail services by a union. There appeared to be political involvement but this was not in fact discussed.