Law Officers Bill [Lords] (Hansard, 24 July 1997)

§ The Attorney-General (Mr. John Morris)

I beg to move, That the Bill be now read a Second time.

This is a very short Bill with the modest purpose of improving the efficiency of my office. It is, incidentally, the first legislation promoted by the Law Officers for more than 50 years.

Before I turn to the Bill, it may assist the House if I explain briefly the constitutional duties of the Attorney-General and the Solicitor-General. The modern title of Attorney-General was first used in 1461. An occupant in 1700 was called the bull-faced Jonas. Elwyn Jones, whom we fondly recall, preferred not to be remembered as the bulldog of the Crown, but as the corgi of the community.

Shortly after taking office, both the Solicitor-General and I swore ancient oaths, as our predecessors did, that we would sue the Queen's process "and after our cunning". I understood that to mean that we would use all our cunning in a better sense. Both the Attorney-General and the Solicitor-General are members of the Government. Together with the Scottish Law Officers, they are the Government's chief legal advisers.

The Law Officers also perform a wide range of duties in the public interest. In those roles, they are independent of the Government and are not bound by the doctrine of collective responsibility. Some of those functions arise from custom or the common law. For example, the Attorney-General on behalf of the Crown represents the interests of charity in the courts. He can lend his name to proceedings brought by a person who wishes to vindicate a public right. He traditionally advises the sovereign on peerage claims. Other functions are conferred by statute, such as the Explosive Substances Act 1883, which requires the Attorney-General's consent before a prosecution may be brought under it.

The Solicitor-General has been regarded as the Attorney-General's deputy since the first Solicitor-General, Richard Fowler, was appointed in 1461. However, the Solicitor-General's ability to act as the Attorney-General's deputy is curiously limited. The reason is simply that most of the Attorney-General's functions are conferred on him personally. Unless statute or the common law provides otherwise, they are exercisable only by the Attorney-General. In 1944, that became an acute problem, when the Attorney-General, Sir Donald Somervell, was in America for several months assisting—I believe—in the drafting of the charter of the United Nations. The Solicitor-General was Sir David Maxwell-Fyfe, who was unable to discharge Sir Donald's functions without express statutory authority.

Parliament duly passed the Law Officers Act, which provided—and provides to this day—that the Solicitor-General has the power to act in the place of the Attorney-General where that office is vacant, or where the Attorney-General is absent or ill, or where the Attorney-General has authorised the Solicitor-General to act in a particular case.

That was a useful reform, but the main drawback of the 1944 Act is that, so long as the Attorney-General is present, the Solicitor-General may not act on his behalf unless he has been specifically authorised to do so.

1108 That is needlessly bureaucratic. There are decisions in dozens of areas that have to be taken by the Law Officers. My officials cannot put papers directly to my noble and learned Friend the Solicitor-General asking him for a decision. Instead, they must put them first to me so that I can consider them and either grant the necessary authority or take the decision myself.

The Bill will make it possible for the Attorney-General's responsibilities to be carried out more effectively, by allowing each of his functions to be discharged by the Solicitor-General. The functions, I should add, remain in law those of the Attorney-General, and the Solicitor-General will usually act in the Attorney-General's name.

The Bill does away with the limitations in the 1944 Act. It thereby places the Solicitor-General, broadly speaking, in the position of a junior Minister in any other Department. A junior Minister may discharge his or her Secretary of State's functions without being specifically asked to do so in every case.

Another weakness of the 1944 Act is that it says nothing about when or how the Solicitor-General may exercise the Attorney-General's common law functions. As a result, his authority comes from the common law itself, where the leading case of Wilkes dates from 1770. The Bill introduces some long overdue certainty.

What I have said so far chiefly applies to England and Wales. Clause 2 makes similar provision for Northern Ireland. The House may at first find that clause bewildering, so I should explain that, by virtue of the Northern Ireland Constitution Act 1973, the Attorney-General for England and Wales is ex officio Attorney-General for Northern Ireland too. The Solicitor-General enjoys no such status, but under the same Act he may discharge the Attorney-General's functions in much the same circumstances as are set out in the Law Officers Act 1944.

Finally, I should emphasise that it is the Attorney-General, as Minister in charge of the Department, who will remain ultimately responsible for the work of both Law Officers. I shall continue to decide how work should be divided between my noble and learned Friend and myself.

§ Sir Nicholas Lyell (North-East Bedfordshire)

I am glad to welcome the Bill. Indeed, in other circumstances my Conservative successor as Attorney-General would have introduced a similar Bill. I had been looking for some years for a suitable slot in which to introduce the provision myself. Of course the Opposition will support the Bill, although it will not be necessary to support it in the Lobby.

The Bill is to be welcomed, because it enables the Attorney-General and the Solicitor-General to work together more efficiently and, where necessary, interchangeably. It will enable the work of the Law Officers' Department to be carried on more swiftly and effectively. In recent years, in particular, the lack of such a Bill has made it necessary to formalise the delegation of work in a somewhat bureaucratic way. When the Bill is passed, we shall be able to do away with that unnecessary formalization.

I was interested to hear what the Attorney-General said about the provenance of the Law Officers' authority. I am not sure whether the analogy with junior Ministers should 1109 be taken too far, because the Solicitor-General is himself a holder of office pursuant to the royal seal, and has powers of his own as well as powers delegated to him by the Attorney-General.

The Bill makes it unnecessary to formalise the delegation of work, and will also make it impossible to take some rather unmeritorious points in court in some of the tricky litigation in which the Law Officers are inevitably involved.

I shall add a word about Northern Ireland. As the Attorney-General has rightly said, there is no formal position of Solicitor-General for Northern Ireland—no office under that title. But the Solicitor-General is always referred to as the Solicitor-General in Northern Ireland when he is acting at the behest of the Attorney-General over there.

It has been an honourable tradition of Attorneys and Solicitors-General over the years, regardless of party, to work closely in Northern Ireland with all those responsible for relevant duties there, as well as with the judiciary.

I regarded it as a great honour to have been called to the Bar in Northern Ireland, and I am confident that the present Attorney-General will have been called too, and is a member of the Bar there. I expect that the Solicitor-General has also been so called, and that both of them feel as Sir Derek Spencer and I did when we were respectively Solicitor-General and Attorney-General, and as Sir Patrick Mayhew and I did in the years when I was Solicitor-General and he was Attorney-General.

We were both called to the Bar of Northern Ireland and were Queen's counsel within the Bar of Northern Ireland, as well as Benchers in Northern Ireland. Each of us regarded that as a great honour, and in the course of the work involved we were taken to all parts of the Province. 1110 This sensible little Bill will enable that work to be facilitated, as well as the work in England and Wales, and I am glad to give it our support.