Examination of Witnesses
Q206Chairman: Good afternoon, my Lords. I am
most grateful to you both for coming to give evidence to the Committee.
Could I remind you that this is televised, so if you would be
kind enough, starting with Lord Mayhew and then Lord Morris, just
for the sake of the record to identify yourselves I would be very
Lord Mayhew of Twysden: My Lord Chairman, I
am Patrick Mayhew, Lord Mayhew of Twysden.
Lord Morris of Aberavon: My Lord Chairman, I
am John Morris, Lord Morris of Aberavon.
Thank you very much. I have got a question which I would like
to ask both of you, which is this: I suppose the conventional
wisdom (and for all I know the constitutional position) is that
the Attorney-General of the day, as well as being the senior law
officer of the Government gives advice to the Government, legal
advice on legal matters. Is that advice, in your opinion, constitutionally
speaking exclusively for the Government or is it for the Government
and Parliament, or is it for the Government, Parliament and the
country? To whom ultimately does an Attorney-General give his
Lord Mayhew of Twysden: My Lord Chairman, you
point towards me, so I will go first. The Attorney-General, in
my view, ones loyalty first to the Queen, to the Crown in person
(he is Her Majesty's Attorney-General), secondly to the law and
thirdly to his colleagues in government. I distinguish, in answer
to your question, between the actual terms and words of the opinion
which he gives to his colleagues and the character of the advice
which he gives. In relation to the character of the advice which
he gives, he is obliged, it seems to me, to answer to the House
of Commons (if he is a Member of the House of Commons), to answer
to Parliament if he is asked for the character of the advice which
the Government is acting upon. The actual terms of the opinion
are confidential to the Government (as the Attorney-General's
client) and that is a privilege which it is entitled to retain,
and in my view for good practical reasons should retain it.
May I just add a quick supplementary on that: it is confidential
because it is governed by a lawyer-client relationship or because
of collective Cabinet responsibility?
Lord Mayhew of Twysden: I think the first, and
I think that is sufficient. If it were to be taken away, then
I think the value of future opinions would be greatly diminished
and diluted because it would open up the terms of the opinion
to being cherry-picked by the Government's political opponents
in a way which it ought not to be made to suffer, so it seems
to me, and I think that the advices in future would be less comprehensive
and less valuable. That is not to say that the character of the
opinion which the Attorney-General would form on a particular
problem, a particular proposed course of action, would change
but the quality of the opinion would be diminished were it able
to be made public.
Just help us with what you mean by "the character of an opinion".
What does that mean?
Lord Mayhew of Twysden: The structure, the analysis
of the legal issues and the conclusion is something which an attorney
is liable to be questioned about, so it seems to me, in the case
of controversial action taken by the Government and it seems to
me that he is obliged to answer that. He has a duty to answer
that question if it is asked in Parliament, but the actual ipsissima
verba of the opinion he has given is in a different category.
I would really like to, if I may, Lord Morris, ask you the same
Lord Morris of Aberavon: Yes. Thank you very
much, my Lord. I would agree with the thrust of Lord Mayhew's
answer. The Attorney is Her Majesty's Attorney and he is the Attorney
to the Crown. He is also the legal adviser to the Government and
in that capacity he shares collective responsibility with his
colleagues. So far as his responsibility to the Crown and his
quasi judicial functions are concerned, he does not share
that responsibility with his colleagues; he is on his own. That
is a broad division. He has many responsibilities, charities,
parens patriea and soon, prosecutions, but generally in
that field he is operating on his own. He has certain responsibilities
to Parliament. He has a responsibility to advise the House, certainly
the House of Commons, and I suspect the House of Lords. He advises
on constitutional issues, if asked upon, to the House. He advises
on the conduct of Members. For many years he was a member of the
Privileges Committee of the House of Commons. When that was enlarged,
I ensured he was no longer a member, he merely had papers. That
eased his task enormously. But he is open to be asked questions
and to answer fully. This is, I think, the distinction which Lord
Mayhew is making, which I would agree with, that if asked, "What
is the legal position?" he should answer, but that does not
mean that he has to give the whole of his reasoning, the caveats
he would enter, the chances of persuading the court that it is
right. That is the wall which should come down. I always liken
him to a family solicitor. None of us would like the advice given
to us by our family solicitors to be broadcast in the market place.
As Lord Mayhew said, thereafter he might not give as perhaps elaborate
advice as he might otherwise do so if he knew that every facet
of it was to be in the public domain.
There is one very interesting point which both distinguished former
Attorneys have made, which I suppose to the person in the street
would come as a surprise, which is this notion of the Attorney-General
being quite distinctly an adviser to the Crown and that being
separate from the function of advising the Government of the day.
That is interesting in the context of this inquiry because the
issue of this inquiry, of course, is whether war-making powers
should continue to be exercised under the royal prerogative. It
seems to me to follow that if they are exercised as at present
under the royal prerogative, the implication of what you are saying
is that advice given to the Executive, which after all exercises
prerogative powers on behalf of a monarch, is not being given,
if I understood you rightly, to the Cabinet but is being given
to the Crown in respect of an exercise of prerogative?
Lord Mayhew of Twysden: It is being given to
the Crown's ministers, who, by the processes with which you are
very familiar, have become invested with the royal prerogative.
The duty of the Attorney-General is multi-faceted. He has a duty
to ensure that the Queen's ministers, who act in her name, or
purport to act in her name, do act lawfully because it is his
duty to help to secure the rule of law, the principal requirement
of which is that the Government itself (and its agents) acts lawfully.
So it is a unique position.
Lord Morris of Aberavon: He is not giving advice
under the royal prerogative; it is the ministers who exercise
the royal prerogative. He is giving advice as a government minister
to the ministers who require it, which perhaps is a road we should
not go down.
Let me just persist for a moment. Let us assume on this side of
the room there are the ministers of the Crown engaged in exercising
prerogative powers and on that side of the room there is a government
accountable to Parliament within our democratic arrangements.
Is the Attorney-General's role different in respect of his Cabinet
colleagues as an elected government vis-a"-vis the ministers
of the Crown exercising historical prerogative powers? Is there
Lord Mayhew of Twysden: I think not. His duty
is to secure that his colleagues act lawfully and for that purpose
it is his duty to give his best and honest political opinion as
to whatever course of action they propose or seek his advice upon.
If they persisted in rejecting his advice and acted in a serious
matter which was unlawful, it would be, in my view, his duty to
resign; indeed, when asked by Parliament to set out the character
of the legal position on which the Government was acting, he would
have to say that it was not lawful in his view. So it would for
practical purposes be his duty to resign. I do not know of any
occasion where he has been put in that position.
Lord Morris of Aberavon: Under the Ministerial
Code ministers are obliged to act according to law, and international
law included, likewise civil servants, likewise soldiers, and
that pre-supposes that they are entitled to advice, and he tenders
that advice like a family solicitor to his client. It is a client-solicitor
BLEDISLOE: I was really trying
to see the distinction which Lord Mayhew in particular was making
as to what his advice would look like if it was going to be published.
Is an analogy that if I write an advice for my client which comes
to the conclusion that he is going to win, I will have set out
the possible difficulties? If I am asked then to write an advice
which he can show to the public or to the other side, I may well
be asked merely to set out my conclusion without giving rise to
the hares which I have discussed but dismissed. Is that the sort
of distinction you were making?
Lord Mayhew of Twysden: Yes.
I would like to bring some colleagues in, but could I just ask
one more question myself? The burden of our inquiry is whether
the prerogative power, which over history has been gradually eroded
by Parliament, should be eroded further by Parliament taking back
from the prerogative power the right of approval to engage in
armed conflict overseas. Is that, in your personal opinions as
people of great experience, a right aspiration or not? Lord Mayhew?
Lord Mayhew of Twysden: My response to this
is the response not of a lawyer but of a politician. I do not
think today that it is practicable to suppose that the public
will be satisfied in terms of confidence in the commitment of
our Armed Forces to what we might call an "armed conflict"
situation solely on the exercise of the prerogative by the Prime
Minister in whom it is now vested. There is a number of reasons
for that. One of them, without expressing an opinion here about
the lawfulness or otherwise of the Iraq war decision, is that
decision. There has been such an imbroglio surrounding it, which
continues, that I think the public are going to seek comfort which
goes beyond the mere exercise of the prerogative power. How is
that to be achieved? If you want to legislate for the lawfulness
of that kind of action, ideally it would be achieved by saying
no such action shall take place without parliamentary consent
and consent shall not be given save for lawful purposes. But as
soon as you start to draft thatand much of the evidence
you have heard from academics, I see, has focused upon thisthe
more detail you go into and you find you are required to go into,
the greater the number of rooms available for the Devil to reside
in, and you find yourself then legislating in a way which is open
to judicial review, to challenge, to appeal and to argument and
it becomes impractical. Therefore, as a politician, I favour a
different way, which is by way of convention. You have had some
discussion about that, I know. Perhaps I had better stop there
for the moment, but I would say that it is not just a matter of
the public, I also look at it from the point of view of somebody
who, like all of us, has responsibility for the welfare of our
Armed Forces. The Armed Forces increasingly today experience great
anxiety, and reasonable anxiety, as to whether what they are being
asked to do involves them in collective or even individual responsibility
of a criminal character. They are entitled to assurance, too,
and I think would look for something like this. I think that parliamentary
approval, though it will not be a guarantor of lawfulness, nonetheless
does offer assurance of what I think you have been calling democratic
legitimacy. I think that is a good way of describing it.
If I could ask a personal question? You served in the Armed Services
at one point in your life
Lord Mayhew of Twysden: As a lowly national
Q216 Chairman: Do you think the position has changed
from when you were a serving officer? Do you think that times
Lord Mayhew of Twysden: Times have certainly
changed, yes. I do not think people thought about whether it was
lawful or not. But now these questions have arisen and our international
obligations have burgeoned. People hear about the International
Criminal Court, and so on. They do not know much about it, but
it sounds pretty nasty if you happen to be a serving soldier and
you are told to, "Get in there and sort it out, and the Army
will stand behind you, lad." All of this is quite worrying,
and it should be worrying. Therefore, they look to seek some sort
of assurance, I think. If they do not get it, I think one must
face the potential risk (not a probability at all, in my view,
but a potential risk) of serious conscientious refusals of duty
in certain circumstances, which would be catastrophic for the
Armed Forces and would lead to horrific consequences, such as
courts martial having to determine the legality or the lawfulness
of a campaign, for example.
I think we would be very interested at some point to explore your
ideas about convention, but I am anxious to bring in Lord Morris.
We will reverse the order of the questioning, Lord Morris, so
that you do not always come in second, but I would be interested
in your overall view of parliamentary involvement or approval
Lord Morris of Aberavon: You will be told in
the evidence, I am sure, that there has been substantial evolution
in the convention as regards the royal prerogativesince
1688. It is convention, after all. It was Churchill who said that
now it is no longer a royal prerogative, it becomes the privilege
of the people. As a democrat, I think one should look at that
evolution and see what is applicable both as regards democratic
acceptability and the point made by Lord Mayhew with regard to
the truth. I was a young soldier a long time ago, and a Defence
Minister too, but it was the CDS, as I understand it, who was
most anxious to be assured of the legality of the action of his
troops, otherwise he could well be in serious hot water at the
time of the Iraq war. I read some of the evidence by the academic
experts and I reached the firm conclusion that going down the
statutory road is much, much too difficult, for various reasons.
If you look at one Bill, for example, Professor Brazier's, he
talks about armed conflict and refers one to the Geneva Convention.
If you look up the Geneva Convention, as I have done, there is
no definition of "armed conflict" even in the Geneva
Convention, so you are arguing in a circle. So that does not help
you at all. Then there are the problems about peace-keeping operations.
I suspect that in our time we shall see more and more of peace-keeping
operations, as opposed to First World War-Somme, kinds of efforts.
I was involved as Attorney-General every day in the Kosovo war.
I had to agree targets each and every day of the 69 days. Was
that peace-keeping? Was it peace-keeping, plus, or peace-keeping,
plus, plus? It is not easy to draw the line between peace-keeping
operations on the one hand and full-blown armed conflict on the
other. That particular Bill does not touch that. The need, as
I see it, is to have democratic credibility, to have an embracing
situation which you cannot conjure to anticipate the needs of
20, 30 or 40 years ahead in a statute. You could argue the point
of it and I do not think you would be much better off at the end
of the day. I think one could develop a parliamentary convention.
There are still difficulties of drafting and definition, which
Lord Mayhew may touch upon, but I think it is a much better road
if one had all the party leaders agreeing on the convention, that
our troops would not perhaps be sent overseas without parliamentary
approval, and perhaps sealed by a Speaker's conference. In my
youth, Speaker's conferences were held on matters of electoral
reform and things of that kind. It gave a special seal of approval
and the Speaker of the day would try to get the parties together.
It might well be that each party's leader at the time of an Election
would upgrade his commitment at the time of his manifesto, and
if he did not he might be asked about it and that could be difficult.
In that way you could anticipate the generality of the problem,
not be too specific, cater for peace-keeping, cater for special
operations which are not touched upon in any of the matters I
have read, and I think that would meet the situation. We can be
taken to international courts. I was taken to an international
court and I spent five long days in the International Court of
Justice in the Hague on whether Yugoslavia could get an injunction
to stop the bombing, leading Professor Greenhill, of whom we have
already heard, and although Miss Wilmhurst was not part of the
team there she was part of the legal team in the FCO at the time
and I am sure her views were considered, and what we were doing
was examined. That is the liability of our troops now we have
the International Criminal Court. So our soldiers want to know,
and I think in that way Parliament could play a very significant
role. We began in the Iraq conflict by having a substantive resolution.
We have been told that we are unlikely to go to war in the future.
The last war was declared in 1942 against Siam. It is armed conflict
now and a state of fact, as the Attorney has told the House from
time to time. I think that is the road which we should develop
and it may be the way forward.
It is impressive to find this cross-Attorney unity on the issue
of a convention and I imagine, Lord Mayhew, that your version
of a convention would be rather similar to that of Lord Morris's?
Lord Mayhew of Twysden: Yes. The drafting, of
course, is going to be all-important, but you have got to avoid
in whatever legislation of a domestic character (that is to say
within Parliament or otherwise) the same difficulties of definition
which will bedevil a statutory requirement. That is why it occurred
to me that the way you might do it would be to establish a convention
which would make it the duty of Government to seek the prior approval
of the House of Commons in respect of any deployment of UK Armed
Forces overseas which may be identified for the purposes of that
convention by the House of Commons. So you would have a general
rule that the House of Commons could tap into in respect of a
deployment which caught their interest, for whatever reason, and
that would avoid a difficulty of definition, which seems to me
to be rather desirable.
WINDLESHAM: Why not Parliament
rather than the House of Commons?
Lord Mayhew of Twysden: That is for discussion,
of course, by whoever is interested in this. If part of your purpose
is to establish democratic legitimacy so as to enhance the confidence
which the public and the soldiers within the public will have,
then I think limiting your requirement to the House of Commons
is more likely to meet that bill.