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Volume 460: debated on Thursday 24 May 2007

The Solicitor-General was asked—

Legal Advice (Publication)

19. Whether he has discussed with the Minister of State for Justice the constitutional implications of publishing legal advice from Law Officers to the Cabinet. (138944)

Yes. It is a long-standing view of Governments that Law Officers’ advice is privileged and confidential, like other legal advice. A disclosure is made only in exceptional circumstances.

Since we last discussed the matter in February, the Minister of State, Ministry of Justice, the right hon. and learned Member for Camberwell and Peckham (Ms Harman), turns out to be a front runner in the deputy leadership contest for the Labour party, which may mean that she could become Deputy Prime Minister. That raises some important constitutional issues. As the hon. and learned Gentleman knows, she believes that the Law Officer’s advice on Iraq should be published. [Interruption.] The right hon. and learned Lady has said it in public. We know that she has said that she believes that the Attorney-General’s advice on Iraq should be published. The hon. and learned Gentleman knows that full well. What is the stand on collective responsibility? What is the Government’s policy on the matter, and does he think it will change at the end of June?

The position of the Government is very clear. It has been stated repeatedly. It is that confidential legal advice is important because it allows candour between the lawyer and the client—in this case, Ministers. Without it, the lawyer may be tempted to temper his advice, when frankness is required. It is in the public interest that there should be good, frank legal advice. That is why there is a long-standing convention. However, collective responsibility is not a gag on all public discussion or debate by Ministers. It requires acceptance of Government policy. My right hon. and learned Friend accepts Government policy but has generated some ideas about the future. We will see how they evolve.

The Solicitor-General knows that I broadly share his views about the difficulties of publishing Law Officers’ advice, but he cannot escape the Government’s collective responsibility on the issue as he has tried to do. If it is under discussion whether Law Officers’ advice should be published in future and a Government Minister is stating that publicly, ought not the House to have an opportunity of understanding the direction in which the Government are moving and to debate an extremely important issue, otherwise collective responsibility collapses, the House is left at sea as to the Government’s intentions, and the public begin to wonder whether there is any coherent and cohesive government taking place?

Hyperbole ill becomes the hon. Gentleman, who is not often given to it, but I fear he has ventured into that area on this occasion. It is clear what the Government’s policy is. It has been set out repeatedly, not least by myself from the Dispatch Box, and Government policy remains as it was under previous Governments. If the hon. Gentleman wants a debate, the Opposition have the right to nominate various debates. If he wants a debate on this topic, let him have one. It can take place in Opposition time. As far as the Government are concerned, we are clear what our position is. It is that we will stand by these conventions. It is right and proper that the Prime Minister indicated a few months ago that Ministers would have a wide ranging look at policy to review it and to generate discussion and ideas. The Minister of State, Ministry of Justice, my right hon. and learned Friend the Member for Camberwell and Peckham has merely generated a few ideas. The hon. Gentleman should not get so wound up and anxious about it.

The Solicitor-General knows that it is obviously right that confidentiality should be the presumption on advice from Law Officers to Ministers, but will he accept that when Ministers come to Parliament and pray in aid that advice in support of a case that they are seeking to win—for example, to justify intervention in Iraq—that changes the game, which is an argument for opening up that advice? Will he accept that when the Constitutional Affairs Committee produces its report on Law Officers, we should debate how Law Officers are appointed, how they are accountable and how public the advice is that they give either to Parliament or to Ministers?

It is obviously a matter for the business managers when and where we have debates. The Constitutional Affairs Committee is examining the issues, including the role of Law Officers, and we await its report with interest. The Government view remains the same on advice, and I can do no better than quote Lord Kingsland, who said this in the other place:

“It would not, of course, be appropriate for Parliament to see the advice that the Attorney-General gave to the Government. Inevitably, any responsible Attorney-General is bound to have to assess all the arguments, some of which might be contrary to the final position that he takes. If that document should become public, it is as sure as night follows day that there would be a very big dispute about its merits. Nothing could be more damaging to the confidence of the soldier who is about to fight.”—[Official Report, House of Lords, 1 May 2007; Vol. 691, c. 1026.]

That summarises the Government view. Setting out the basis on which the Attorney-General has reached a view is fine, which is what we have done in the past, but we need to consider giving all the legal advice with a great deal more caution.

Antisocial Behaviour (Prosecutions)

20. What steps the Crown Prosecution Service is taking to improve prosecution rates in cases of antisocial behaviour by young people; and if he will make a statement. (138945)

No full data are available in relation to the various different offences of antisocial behaviour, as distinct from other offences alleged to have been committed by young people. Overall last year, 121,648 cases were prosecuted against young people. Subject to the gravity of the offending, the CPS usually prosecutes a youth after he or she has had a reprimand or warning.

Whether it is the leafy lanes of Lichfield or the back streets of Glasgow, Mr. Speaker, there is no question but that antisocial behaviour is very disturbing to neighbourhoods. The Solicitor-General will know that only half of those who breach antisocial behaviour orders are prosecuted with custodial sentences. What can the Solicitor-General do to ensure that there is a real deterrent to prevent ASBOs from being breached in order to maintain calm and pleasant neighbourhoods?

The issue is important, and I am glad that the hon. Gentleman supports the Government view on tackling antisocial behaviour. He has rightly said that it is important that those orders should be complied with, and magistrates have powers to deal with young people, and indeed others, who breach ASBOs. Some breaches are serious and merit a serious remedy, but others are less serious. It is important that such matters are dealt with, but it is also important that the response of the courts is proportionate. The CPS takes proportionality into account when it decides how to respond to a breach in a particular case.

Has the Solicitor-General looked at north Liverpool, where Judge Fletcher in the community justice centre is providing a model that should be followed elsewhere in order to tackle the prosecution of antisocial behaviour cases?

I have not only looked at the data on that but have been up there and spoken to Judge Fletcher, who appears to be doing an excellent job. The community court system in north Liverpool, which brings all the agencies together at considerable expense, is difficult to remodel elsewhere. However, the pilot seems to be working very effectively, so we must look at it with a great deal of care to see whether there are lessons that we can learn for the future.

We have already heard about the breach rates for antisocial behaviour orders. Community sentencing is particularly important for young people because two thirds of them will receive such a sentence if successfully prosecuted. Fifty per cent. of intensive supervision and surveillance programmes, which many young people get put on to when they are prosecuted, are also breached, but all that happens is that those 50 per cent. get put back on to the programme. Are not the Government successfully teaching young offenders that they can flout the law and nothing will happen to them, and is not that part of the problem as regards the growing numbers of young people who are being prosecuted?

The hon. Lady is entirely wrong. She should have listened to what I said to the hon. Member for Lichfield (Michael Fabricant)—that the courts have the powers to deal with these issues, but they need to do so proportionately. Some breaches are very serious and need to be dealt with as such; others are not so serious and need to be dealt with as such. It depends on the circumstances. Trotting out such statistics obscures rather than clarifies the real issues that face the courts on a day-to-day basis. Instead of criticising the way in which the courts deal with these issues, she should bear in mind that they have a very difficult job to do and some very difficult judgments to make. Criticisms of the sort that she makes are not worthy.

Prosecution Policy

21. What assessment he has made of consistency of prosecution policy between the Army Prosecuting Authority and the Crown Prosecution Service. (138946)

Both the CPS and the armed service prosecutors will apply the same evidential test—namely, whether there is enough evidence to provide a realistic prospect of conviction—and then decide whether there is a public interest in prosecuting. In the case of the armed service prosecutors, that includes the service interest.

The Army Prosecuting Authority dropped a case against British soldiers, despite lots of evidence having been on worldwide TV, saying that it had happened more than six months before. It claimed in its press release that the same applied to the civil authorities. Can the Solicitor-General confirm that if a thug beats someone up and lies low for six months, he will not be prosecuted despite the evidence? Is that the law, or has the Army Prosecuting Authority got it wrong?

The Army Prosecuting Authority has to look at the evidence before it and decide whether a prosecution is able to take place with witnesses who can give effective evidence to secure that prosecution. If the evidential test is not passed, the prosecutors will not take the case forward; if it is passed, they can take it forward. They will then have to consider public interest issues. My hon. Friend appears to be talking about the evidential test. I am happy to discuss the issues with him further, but it seems from what he says that the evidential test was not passed.