Select Committee on Constitution Minutes of Evidence


Examination of Witnesses (Questions 206-219)

LORD MORRIS OF ABERAVON AND RT HON LORD MAYHEW OF TWYSDEN

8 FEBRUARY 2006

  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 grateful.

  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.

  Q207  CHAIRMAN: 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 advice?

  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.

  Q208  CHAIRMAN: 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.

  Q209  CHAIRMAN: 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.

  Q210  CHAIRMAN: I would really like to, if I may, Lord Morris, ask you the same question.

  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.

  Q211  CHAIRMAN: 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.

  Q212  CHAIRMAN: 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 any difference?

  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 relationship.

  Q213  VISCOUNT 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.

  Q214  CHAIRMAN: 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 that—and much of the evidence you have heard from academics, I see, has focused upon this—the 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.

  Q215  CHAIRMAN: 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 serviceman!

Q216 Chairman: Do you think the position has changed from when you were a serving officer? Do you think that times have changed?

  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.

  Q217  CHAIRMAN: 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 in deployment.

  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 prerogative—since 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.

  Q218  CHAIRMAN: 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.

  Q219   LORD 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.


 
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