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Corruption

My Lords, it is excellent that the noble and learned Lord the Attorney-General is here to answer the debate. Nothing that I say is an attack on his personal integrity; he has been put in an impossible position. When the noble and learned Lord became Attorney-General I tried to convince him that he should make his office less political and more constitutionally independent, as happens elsewhere in the Commonwealth, Israel and Ireland. I did so because I was convinced that the Attorney-General, like the Lord Chancellor before the Constitutional Reform Act, wears too many hats. I did not persuade him. On the contrary, his office has become more political, no doubt because he believes that the Attorney-General should be at the heart of government and be politically influential. I respect that view, shared, as we have heard today, by previous holders of his ancient office, the noble and learned Lords, Lord Lyell and Lord Mayhew. I believe, however, that the events of the past five years illustrate the need to reform the present arrangements so as to restore public trust in government and to strengthen the rule of law. Good governance under the rule of law depends not only on the courts but on the proper working of the constitutional rules and conventions, and the political will to make them work. The constitutional rules and conventions were stretched to breaking point over the invasion of Iraq, and now they have been broken in halting the criminal investigation into the BAE Systems affair. It was wrong for the Cabinet to be kept in the dark about the noble and learned Lord’s written opinion when it considered whether it would be lawfulto invade Iraq without a UN Security Council resolution. It was wrong for it to have to rely only on what he told them on the eve of the invasion. It was also wrong for Parliament to be given only a facile Downing Street précis of his conclusions without the benefit of his sophisticated advice and the reason for his change of opinion. When we debated the legality of the invasion, we were kept in the dark. It was only because his advice was leaked to the press that we learnt part of the truth. I agree with almost all public international lawyers that the invasion was unlawful. To her great credit, the deputy legal adviser to the Foreign Office, Elizabeth Wilmshurst, promptly resigned because she did not agree that the use of force was lawful. She considered that the noble and learned Lord had changed his view on the matter. Then in December we learnt that the law officers were kept in the dark about the attack on Egypt in 1956. Eden and his Cabinet bypassed them, presumably because they knew what they were planning was plainly illegal. That is another example of why reform is needed. The Attorney-General also has important responsibilities for the enforcement of the criminal law in the courts. There are a number of offences for which a prosecution cannot be brought without the fiat of the Attorney-General. That was meant to provide a safeguard against the risk of prosecutions being an abuse of proceedings or contrary to the public interest. Surely a member of the Government and a politician should not be able to decide whether to prosecute for a highly political offence involving alleged corruption. The Attorney-General is a member of the Government, their most senior legal adviser and independent law guardian of the public interest. How can he claim credibly to act quasi-judicially when he plays a highly political role at the heart of government? That is the dilemma. The manner in which the criminal investigation of alleged corruption in relation to BAE Systems was halted shows how fragile and inadequate are our present constitutional arrangements for protecting the rule of law and good governance. It has eroded public confidence in the Government's integrity. In halting the investigation, the Government have acted in clear breach of their obligations under the OECD convention against corruption, as my noble friend Lady Williams of Crosby pointed out. It has stained the international reputation of this country and set a bad example here and abroad. It has weakened the battle against corruption in international trade. The weaving and ducking, buck-passing and hand-wringing involving the Prime Minister, the Attorney-General, the SFO and the intelligence and security services as to why, how and at whose behest the pending criminal investigation was halted are a shambles, harming the Government's reputation as well as the reputations of BAE Systems and the Saudis and adding to widespread public distrust and cynicism about standards in public life. If I may say so, the noble and learned Lord's insistence that he has no choice but to decide whether anyone should be prosecuted in the cash for honours affair is also unwise and unsustainable. I was delighted to read in last Sunday's Observer that the noble and learned Lord, Lord Falconer, has suggested that the Attorney-General's role is to be changed as part of further constitutional reform and that Gordon Brown is considering radical reform of the role to restore public trust. As elsewhere in the Commonwealth, parliamentary accountability for the Attorney and the DPP could easily be secured by having an elected Cabinet Minister of justice. The sooner that that happens, the better it will be for the good governance of this country under the supreme law of the British constitution—or what should be our supreme constitutional law.