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Law Officers

My Lords, like other noble Lords, I thank the noble Lord, Lord Rodgers of Quarry Bank, for introducing the debate. I agree with everything that has been said by noble and learned Lords on both sides of the House. In particular, I agree that this is not an occasion to impugn the integrity of the noble and learned Lord the Attorney-General. I accept, certainly, that the essence of this is accountability, as has been explained. I am totally at a loss to understand the tutorials of the noble Lords, Lord Morgan and Lord Goodhart, as logical presentations leading anywhere. This is also an occasion to thank the noble Lord for giving the House an opportunity to consider the exercise of the Attorney-General’s supervisory role over those serving in our Armed Forces, on armed peacekeeping, who are charged with murder. And why? Because the morale of the Armed Forces has been greatly affected. Problems of retention and recruitment have been engendered under this regime, which will continue until about 2008 when the Armed Forces Bill takes effect. What must be done to restore morale? As an immediate priority—and this in the wake of a series of these trials, after unjustified and unacceptable delay, on flawed evidence on which conviction could not be sought—consideration may well be given as to whether charges should be laid, and trials by court martial should now ensue, on independent advice as to the prospect of success on the quality of the evidence, and whether trials under the civil jurisdiction should now be entrusted to the High Court on the application of the Attorney-General. Aspects of the extant supervisory regime, in which absolute discretion rubs shoulders with natural justice as reflected in the ECHR, have afforded this devastating loss of morale. What happens is that a resort to trial under civil law is granted by the Attorney-General within the closet of absolute discretion without notice, reasons, or any means of objection and is not open to challenge in the courts. If this role of the Attorney-General were to be exercised on application to the High Court, there would not only be a judicial determination of what is in the public interest as distinct from what could appear to be in the political interests of government; there would also be a judicial determination as to the quality of the evidence on which conviction is to be sought. Directions would be given by the High Court not only as to trial but for the avoidance of delay. Urgent steps must be taken to instruct independent lawyers to examine all cases as to the questions to be asked on interview; to the charge; and to the sufficiency of the evidence. Under the extant regime, advice is given by the Attorney-General to the Armed Forces prosecuting authority not to arrange for trial in such cases by court martial, but in the civil courts. Why is such advice given? Is it given at the instigation of the Attorney-General, or at the request of the MoD at one of their regular meetings? It remains a matter of concern to our Armed Forces, that the MoD sought resort to the civil jurisdiction for reasons extraneous to justice, to placate pressure groups concerned with the death of Iraqi civilians and to safeguard the military justice system as reported in the Official Report on 14 July 2005, col. 1222. Does it really make sense that there should be this close working relationship between the Attorney-General and the legal services of the MoD under which resort to the civil jurisdiction is sought and granted? Would it not be far more satisfactory if application were made to the High Court, which either granted or refused the application?