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Legal Advice (Publication)

Volume 460: debated on Thursday 24 May 2007

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.