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Armed Forces Bill

This amendment simply makes it a defence to prove that something is an unlawful enterprise. In some ways, it is quite an attractive amendment and, viewed academically, one can see how the already eloquent argument of the noble Lord could be expanded. However, I suggest that it must fail on practical grounds, for the reason given by my noble friend Lord Kingsland. Under our constitutional arrangements, for better or for worse—and I cannot think of one that would be better practically—the Government’s legal adviser is the Attorney-General. Somebody has to hold that position and, for there to be an end to a dispute, there has to be a rule that, when the Attorney-General has given his opinion on the legality or otherwise of something, the Government must accept it. If they have to accept it, I do not see how, practically, it can be sustained that those whom they order to give effect to their policy should be able to challenge that which the Government themselves cannot challenge. In those circumstances, as a matter of practicality, I suggest that this amendment must fail. I do not think that this is to oust the jurisdiction of the courts on the question whether something is lawful. We are simply considering whether there should be a defence. I do not believe that you can prevent somebody raising it as a matter of consideration for the court. That jurisdiction is not being ousted; we are simply preventing it becoming a defence, for the practical reasons that I and other noble Lords have suggested.