Debate on the Address

My Lords, I am very glad to take part in this very interesting debate. I apologise for the fact that my subject relates to the constitution rather than to housing, as I could not be here yesterday. That subject is the consideration that the Government are giving, and are inviting us all to give, to the future role of the Attorney-General and who should exercise that role. Possible changes might be included in a draft Bill. Suggestions for change have come from the House of Commons Select Committee, and include the suggestion that all or part of the role might be taken by a senior public official. I have written to the Attorney-General, and I will give a proper formal response to her consultation by 26 November. No doubt that might be published at some point. I should like to put on the record the key points that should be borne in mind. There is some quite profound constitutional misunderstanding, even in the very high reaches of government, about this very important but not always widely understood office. The Prime Minister said in July that among the 12 Executive powers that he might hand back might be the role of the Attorney-General in taking prosecuting decisions. This is a huge misunderstanding. When the law officers have any role in giving advice or taking prosecuting decisions, they are acting not as members of the Executive but as the independent law officers of the Crown. They are appointed by the Prime Minister and can be sacked by him, but no law officer worth their salt—and I exclude none from the category—can be told what to do contrary to their legal knowledge and professional conscience. Furthermore, it was said that the noble and learned Baroness, Lady Scotland, in whom I have the very highest confidence and for whom I, like the House, have very high regard, had said that she would take no prosecuting decisions other than those required by law. I wondered what was going on in the Cabinet Office that the Prime Minister should have said such a thing. No law officer during my 27 years of quite close association with that office going back to 1979 has ever taken any prosecuting decision that he or she was not required to take by statute. Such decisions are taken by the Director of Public Prosecutions, the director of the Serious Fraud Office, the head of the other many prosecuting authorities or their officials, or the Crown Prosecution Service. We must understand that that is how it works. The great importance of the law officers of the Crown lies in the fact that they are independent. It is sometimes said by academics that we lack the proper separation of powers in this country. That is not true; we believe profoundly in the separation of powers. We require Ministers such as the Lord Chancellor exercising those functions and the other law officers to hold those powers separately within themselves and to be answerable in both Houses of Parliament for doing so—a far more powerful check and balance than can be achieved by having a public official occasionally, or even fairly frequently, come to a Select Committee. It is said that the problem is one of perception; the examples given are the advice given by the noble and learned Lord, Lord Goldsmith, on the war and the controversy over the withdrawal of the British Aerospace prosecution. I support and speak up for the noble and learned Lord in his very difficult role in both those aspects. On BAE Systems, my own view, so far as anyone can see outside the office, is that he was absolutely right, and any suggestion that he should be replaced by a public official is made pretty good nonsense when one realises that the decision was actually taken by the director of the Serious Fraud Office on the advice, which was given three times in long telephone conversations, of our ambassador in Saudi Arabia. I do not believe that either of those senior public officials—I know the director of the Serious Fraud Office quite well—would have dishonoured themselves by taking a decision if they did not believe that they were doing something that was true and proper and in the public interest. The noble and learned Lord was quite right to support them. What is more, he was quite right to look carefully into the case because there was much more to it than met the eye, and I very much doubt, as he said, whether it would have ever come to a successful conclusion. That is all that I can say, given the short time that I have. On the war, there is a serious case in due course for a public inquiry into the legalities and how the decisions were taken. This may be controversial, although I do not think that it is too controversial, but I believe that the Prime Minister’s assurance that our immediate national interests were threatened was crucial to the noble and learned Lord’s decision. He bravely and wisely said that regime change was not a justification, but took the decision when told that our immediate national interests were threatened. We are of course back to weapons of mass destruction and so on—a highly controversial area; there will be a time to look into this. This great public office has stood the test of time, and it should not be dismantled.