HL Deb 21 April 1971 vol 317 cc754-72

8.41 p.m.

LORD BROCKWAYrose to ask Her Majesty's Government whether they will refer to the Judicial Committee of the Privy Council the question of Britain's legal obligations to supply arms to the Republic of South Africa. The noble Lord said: My Lords, I beg leave to ask the Question which appears on the Order Paper in my name. I regret that this important Question is being raised at such a late hour. I have no complaint to make against the discussion which has preceded it: the very full debate which has taken place on pornography reflects one of the best features of this House in discussing issues which are of such profound importance to our society. I regret the late hour particularly because my noble and learned friend Lord Gardiner, who had indicated that he was going to take part in the debate, is not able to be present. But I welcome the fact that my noble friend the Leader of the Opposition will be expressing the views of noble Lords on this side of the House. At this hour the number in this House is small, but the very fact that the Lord Chancellor is to take part in this debate indicates its importance.

We are not now discussing the question of the rights or wrongs of supplying arms to the Republic of South Africa; many of us, on both sides, hold strong views upon that matter. The Question which I put to-night and the discussion which will follow are limited to our obligations under the Simonstown Agreement. Perhaps some of your Lordships will be surprised that one who is not a member of the legal profession should be raising this issue. I am doing it as a Parliamentarian because it raises fundamentally the issue of constitutional practice, of the functions of Parliament and of the Government and of the Judiciary. We accept the principle that, while we make laws and agreements, the legal interpretation of laws and of contractual agreements is within the province of the courts. I hope to prove that this is a case where that principle should be accepted.

I submit that there is a prima facie case for submission of this issue to the the Judicial Committee of the Privy Council. There is first the fact of the direct confrontation of view between the Law Officers of the Crown of two Governments. On the judgment of the Law Officers of the preceding Government the then Prime Minister and other Ministers said that there was no legal obligation to provide further arms under the Simonstown Agreement. On the advice of the present Law Officers of the Crown, the present Government say that there is. The effect of the decision may be very serious, and it is therefore important that there should be no doubt. There is dissention in the Commonwealth on this issue. British trade with the whole of black Africa, which may become greater than our trade with South Africa, is threatened. Already the Government's decision has resulted in the abandonment of the Commonwealth Study Group on the Defence of the Indian Ocean; and even withdrawals from the Commonwealth are possible.

In the debate in another place on March 3, the former Attorney General said (and according to the practice of this House I summarise his words) that in view of the importance which the Government attach to this legal issue, and in view of its seriousness, he submitted that we should be well advised to consider seeking the advice of the Privy Council. He indicated that not only was this his own view, but on the problem of the construction of the Agreement there was distinguished support for it. He emphasised—and about this I think we shall all agree—the authority, the distinction and the independence of the Privy Council. The Minister of State for Foreign and Commonwealth Affairs, Mr. Godber, who replied to the debate, did not comment upon this observation. I am not criticising him because interruption in the House prevented him from replying in any detail. I hope that on this point a reply will be made to-night.

In the United Kingdom this House is the highest Court of Appeal. I found it of interest from some research that, ever since the famous O'Connell case in 1844, only Members of this House who hold high judicial office participate in the decisions. There is at least one case in which the Lord Chancellor has denied to other Members of this House a participation in the decision


My Lords, if the noble Lord will allow me to interrupt him, I should like to point out that the Lord Chancellor has no right to deny participation to Members of this House. What happened particularly on the occasion to which he refers was that my predecessor, Lord Lyndhurst, appealed to the House to disregard it; and this is the authority of the House and not in any way that of the Lord Chancellor.


My Lords, I am grateful for that correction and I appreciate it. I do not think it makes any difference to the argument which I was putting. But while this House is the highest Court of Appeal in the United Kingdom, in cases where British law and international law intermingle, as in prize jurisdiction, and ecclesiastical law, it is accepted that the appeal is to the Privy Council. I wish to add a compelling reason why, on wider grounds, the issue that I am raising this evening should be referred to the Privy Council.

I have referred already to the implications on the future of the Commonwealth. For centuries the Judicial Committee of the Privy Council has served as the court of last resort for the Commonwealth. While it is true that many Commonwealth countries have now excluded its jurisdiction, it still has a persuasive effect on those' Commonwealth countries which have a legal system based on that of England. The Judicial Committee can summon to its deliberations high judicial figures who are judges in Canada and other older Commonwealth countries. If the Judicial Committee were to include among its membership on this issue not only eminent Members of this House but high judicial figures from the Commonwealth still entitled to be present, the effect might be considerable. I do not suggest, nor indeed do I hope, that Commonwealth countries would change their attitude towards arms to South Africa, but I believe that they would appreciate the integrity and honesty of the Government's action and that the tendencies towards some dismemberment of the Commonwealth would be curbed.

I want to put a broader consideration which does not appear to have been in the minds of the Law Officers—our obligations under the Charter of the United Nations as a result of Resolution No. 191 of 1964. There had been earlier discussions in the Security Council when Britain, under the premierships of Mr. Harold Macmillan and Sir Alec Douglas-Home, abstained, on the ground of our obligations under the Simonstown Agreement and the duty to protect the Cape routes. A change of policy occurred in June, 1964, when we also had a Conservative Government. The British delegation were instructed by the Government to vote in favour of a resolution which called—and I quote: upon all States to cease forthwith the sale and shipment to South Africa of arms, ammunition of all types, military vehicles and equipment, and materials for the manufacture and maintenance of arms and ammunition in South Africa". I recognise that Sir Patrick Dean, the British delegate, expressed reservations, but when the vote was taken he said—and again I quote: I should however like to make it quite clear and to put it on record that my delegation is ready here and now to vote on the draft resolution in its present form and as it is now before us. My Lords, the courts have again and again laid down that a law or contract should be interpreted legally not by what is said but by its terms. There can be no doubt about the obligation laid down by Resolution 191. The case is strengthened by what the Attorney General said in another place on March 3. He explained that it was only on one paragraph of the resolution that the Government had a reservation: it was the paragraph calling upon States to refrain from supplying arms of any type whatsoever to South Africa. That paragraph, however, is not the crucial point in relation to our obligation. The obligation rests under Chapter 7 of the Charter of the United Nations—and I quote: with respect to threats to the peace, breaches of the peace and acts of aggression. The basic principle of Resolution 191 was a conviction that the situation—and I quote again— in South Africa is continuing seriously to disturb international peace and security. That would seem to come within the category of Chapter 7, which I have already quoted.

I carry the argument a stage further. Under Article 103 of the Charter it is provided that—and I quote: In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. It would appear, therefore, that an obligation to the United Nations under this Article overrides any previous obligation which may have existed under the Simonstown Agreement. I do not want to be dogmatic on this point. There are evidently two views, as indicated in the correspondence in The Times between Mr. Geoffrey Bing, Q.C., who has so often been proved right in these matters, and Colonel Draper, who is an authority on military law, as well as by an editorial in that paper. The discussion turns on how far Article 103 dealing with obligations under the Charter applies. All I can say is that there is a prima facie case.

My Lords, I want to draw attention to a precedent in this matter. It was the recommendation of the Security Council that Member-States should send troops, munitions and armaments to defend South Korea. That resolution was supported by all Parties in another place as a fulfilment of "obligations under the United Nations Charter". My Lords, the resolution regarding Korea was not as strong as the United Nations resolutions in regard to South Africa. The Korean resolution was a recommendation; the South African resolution calls on us to participate. I will not say that this is decisive, because I have argued that the interpretation of the law should be by the Judiciary rather than by Parliament, but the fact cannot be dismissed in considering what our obligation is under the Charter.

I want to make one further point, which is whether South Africa has kept to the terms of the Simonstown Agreement. That Agreement laid down that there should be no racial discrimination at Simonstown. When I put Questions in this House on the matter the reply was that there were no restaurants and bars in the docks. But there is discrimination outside the docks, where seamen have to go for food, drink and pleasure, and where non-whites have to go many miles in order to be served. The American Government has banned its seamen from landing because of this discrimination. I hope that if this issue reaches the Judicial Committee consideration will be given to the question whether this racial discrimination, if it does take place, should be regarded as a ground by the United Kingdom for terminating the agreement.

My Lords, I have spoken as a layman. I had hoped that distinguished experts in international law on both sides of the House would be able to contribute to the discussion. I content myself by asking whether on this grave issue, affecting the moral convictions of many in this country, the future of the Commonwealth and the status of the United Nations, it would not be better, in view of the difference of the opinions of the Law Officers of two Governments, to end the legal doubt by submitting it to the highest authority available. My Lords, I ask my Question.

9.4 p.m.


My Lords, I must first apologise on behalf of my noble and learned friend Lord Gardiner that he is not here, and I am sorry that my noble friend Lord Brockway has to make do with such inadequate support from myself as a layman. It seems to me, even, as a layman, that there are certain issues at stake which not only we but Parliament as a whole are not capable of resolving. I thought my noble friend stuck most strictly to the terms of his Question and did not use it as a vehicle, as I am tempted to do myself, to discuss some of the graver issues with regard to South Africa. I think he has made very clearly and moderately certain points on which we are entitled to an answer from the Government.

At the same time, in a paradoxical way I do not myself believe that the Government—even so distinguished and learned a figure as the noble and learned Lord on the Woolsack—are capable of giving it. It is a fact that no answer was given in another place to the suggestion that certain of the issues should be referred to the Privy Council. I think my noble friend Lord Brockway was somewhat charitable to Mr. Godber, who at least had about four columns of uninterrupted speech in another place, and I find it very surprising that when an ex-Attorney General and an ex-Secretary of State for Defence suggest to the Government that a course should be followed no reference whatsoever is made in the Government reply.

I cannot bring the knowledge or the degree of words that I know my noble and learned friend Lord Gardiner would have brought to this subject, but it seems to me that there are three issues which it is very difficult to answer, and they were clearly put by my noble friend Lord Brockway. First of all, there is what might be called the Bing case, the case as to whether Resolution 191 overrides other obligations; and I hope I have this right. Having followed the correspondence in The Times and read Colonel Draper's letters, I must say that I am slightly disinclined, and indeed my noble friend Lord Gardiner is, to feel that Mr. Bing's case is right. But as my noble friend Lord Brockway has said, I also have painful recollections that Mr. Bing has been right on other occasions. There was one very famous case where the law officers and all the pundits said that Mr. Geoffrey Bing was wrong, and when the matter came to court—I think this was the MacManaway case—the noble and learned Lord will remember that Mr. Bing was right.

There is quite considerable evidence from cases that have been discussed in other countries to suggest that Resolution 191—and I will not go into the technical arguments as to whether it was under Chapter 6 or Chapter 7—may have had an overriding effect, but I do not know. However, having seen some of the opinions that have been given by distinguished international lawyers, without in any way reflecting on the integrity of the Attorney General who gave his opinions in another place, I must say that this is a matter which I should like to have seen argued out, using a judicial process as opposed purely to a difficult and limited consideration without argument being put forward, followed by a Law Officer. Again, there is no reflection on Sir Peter Rawlinson in this matter.

When I come to some of the other points I feel that it is really impossible for me, or for noble Lords opposite, to decide whether Sir Elwyn Jones, the former Attorney General, or Sir Peter Rawlinson, the present Attorney General, is right. How can we decide? How indeed, may I say, can the noble and infinitely resourceful learned Lord who sits on the Woolsack? That brings me to the question, which was very carefully argued, as to whether the recent additional supply of helicopters is really called for under what I think is called the Sea Routes Agreement. Here there was a heated argument as to whether they were intended for frigates or destroyers, the point at which they should be supplied, and whether 2.5 helicopters was the right amount for a reserve.

When one looks at the Law Officer's opinions one find some very strange gaps. There is a difficult point of interpretation, such as whether one is obliged to supply these helicopters when they have worn out, and for how long. They could go on wearing out, one after the other, for another 100 years. In another part of the argument in the White Paper it is suggested that at some point the time will have elapsed, and that the obligation no longer applies. I believe that some of the arguments in this White Paper do bear on the question as to whether this additional supply of helicopters is really justified.

It may well be that the Government do not want to supply them anyway. There are some of us who are perhaps thankful—as I incline to believe—that this may be the end of the supply of arms to South Africa. I think we would say "Thank goodness for that! Let them get away with this. Let them provide a gesture in the light of the somewhat extravagant statements which the Prime Minister made before he went into office, and some of the indiscretions of undoubtedly 'instant government'". Governments do get caught out at an early stage before they have had time to think about things, and it may well be that we shall be very thankful that this is the end of this particular road. Certainly the Law Officer's opinions make clear that there is no question of a more extensive commitment of defence equipment. On this occasion I do not wish to go into the arguments as to why I think it is wholly contrary to British interests that we should supply any more. None the less, there are some important issues.

The third issue to which my noble friend referred—and I do not know how much weight to give to this question—was as to whether there is some breach of agreement because of the application of the methods of apartheid in the base area. I would ask the Government—and I know we shall get a learned and I hope, politically wise reply from the noble and learned Lord—whether they will make a reference to the Privy Council; and if they will not we should like to know why. Possibly it can be argued that there is no case to go; but you cannot dismiss the fact that the former Attorney General and my noble and learned friend Lord Gardiner feel, without accepting the Bing thesis, that there is a case. I hope that the noble and learned Lord the Lord Chancellor will be able to meet us on this point. I know it is difficult, but the arguments we are putting 'forward have been put forward moderately and sincerely, and I would suggest that it would even be helpful to the Government to take this way out.

9.15 p.m.


My Lords, the noble Lord, Lord Brockway, has asked Her Majesty's Government whether a question could be referred to the Judicial Committee of the Privy Council, and the question which he has suggested should be referred is the question of Britain's legal obligations to supply arms to the Republic of South Africa. The noble Lord, Lord Brockway, said that this raises an important constitutional issue. I think it does, and I have been at some pains to get the answer to the constitutional issue. But there are two extraneous matters which have nothing, in my view, to do with the case and which I should like to dispose of forthwith.

I am personally very sorry indeed that the noble Lord, Lord Brockway, resurrected the Bing thesis, if I may so call it, from the grave which had been dug for it by Colonel Draper. Colonel Draper, in The Times (your Lordships can refer to the correspondence in detail), made mincemeat of Mr. Bing, and although he may have been right in the MacManaway case there was nothing left of him at all over the issue as to whether Resolution 191 imposed a legal obligation on anybody or whether it was under Chapter 7 or Chapter 6 of the Charter. Really, these points are unarguable, and it is not worth discussing them.

The other point which is not worth discussing in connection with this question is the political issue about discrimination in the dockyard. That is partly a question of fact, and in so far as it is not a question of fact it is a question of policy; and there is nothing whatever to refer there, and I shall not refer to that again in what I have to say. But, left to itself, and eliminating these extraneous and, to my mind, wholly unmeritous and irrelevant questions, there remains an interesting constitutional issue to be discussed. There can I think be no doubt as to the answer, but I must ask the pardon of the House if at this late hour I give my reasons at some more considerable length than I should have wished to impose on your Lordships. I do so partly because I find the question interesting myself, and partly because the noble Lord, Lord Shackleton, who discharged so ably the role of the noble and learned Lord, Lord Gardiner, expressly invited me to give my reasons in detail so that they should be recorded and considered by those who are interested in constitutional questions.

The Judicial Committee of the Privy Council, to which it is proposed that reference should be made, is a statutory body. It is the only Committee of the Privy Council, I think, which is a statutory body. It is a body created by statute, and the only jurisdiction which it would have to consider a reference of the kind proposed is contained in Section 4 of the Judicial Committee Act 1833, under which it was set up. This is a somewhat interesting Act because it is an Act of which the only begetter was my predecessor, Lord Brougham, in the burst of legislative activity which marked his Chancellorship. It is almost the only achievement of that period which has survived almost unchanged throughout the years which separate us from it.

Incidentally, at the risk of boring the House, I would point out that it is a rather curious fact, with an Act of this importance—I searched in Hansard, I searched in The Times of the following day, I searched in The Times of the period for debates in the House of Lords and for debates in the House of Commons—that there is no record of what was said when it was set up except for a very prescient remark by a certain Mr. Ferguson in the House of Commons, who said that it did not deal with the only point in which he was interested, which was the possibility of conflict between the Privy Council and the House of Lords. Those who have seen the recent decisions about Rookes v. Barnard in the Court of Appeal will realise how prescient Mr. Ferguson was. However, that, I am afraid, is simply a piece of interest which entranced myself.

The main purpose of the Act of 1833 was to create an instrument for the judicial handling of that residuum of cases which remained in the Privy Council after the rest of the judicial system had crystallised. I hope I may be forgiven for explaining what I mean by that sentence. All justice in this country emanates from the Crown. It is, as the old phrase was, "the fountain of justice", and from the Norman Conquest onwards the Crown gave its justice through an instrument called the Curia Regis—the Court of the King. One after the other of the courts of the Realm gradually hived off from the King's Court. There was the Court of King's Bench, there was the Court of Exchequer, there was the Court of Common Pleas and there was the Court of the Lord Chancellor himself, which dispensed equity rather than law. Finally, Parliament arrogated to itself—and it seems to have been an arrogation in the first place—the ultimate right of appeal in causes in England, and subsequently of course, in Scotland and Ireland, as the House of Lords. That is a piece of legal history.

But there remained at the end a curious residuum of justice which remained with the King himself and which he exercised through his Privy Council. This went on for quite a long time. Some of it was lost, like the Star Chamber, which was exercised through a committee of the Privy Council, and some of it remained. The right reverend Prelate will remember that Papal jurisdiction was added to it, certain statutory jurisdictions were added to it, but it became a curious amalgam of jurisdiction which the King had to exercise through the Privy Council. Lord Brougham created a court, called the Judicial Committee of the Privy Council, to exercise what had previously been done; and that was the meaning of the Act of 1833.

Section 3 of the Act provides for what I might call the usual run of business, such as ecclesiastical appeals—and, with respect to the noble Lord, Lord Brockway, they have nothing to do with international law they are part of the law of this Realm, because the Bishop of Rome has no jurisdiction in this Realm of England and therefore there is no international element in this matter; it is purely a matter of our jurisdiction—and there were, of course, the appeals from the Colonies. Those are all we need to consider for the present purpose.

But Section 4 went on to provide for extraordinary references, and that is the only statutory source of the jurisdiction which the noble Lord wants to invoke in his Question. Section 4 provides, in the reign of King William IV. It shall be lawful for His Majesty to refer to the said Judicial Committee for hearing or for consideration any other matter whatsoever as His Majesty shall think fit and such Committee shall thereupon hear or consider the same and shall advise His Majesty thereon in Mariner aforesaid. Now what was meant by "in Manner aforesaid"? This expression, "in Manner aforesaid", where it occurs at the end of the passage in Section 4, obviously refers back to the last words of the preceding Section, Section 3, providing that the report of the Judicial Committee in its ordinary jurisdiction should be in, the same manner and form as has heretofore been the custom with respect to Matters referred by His Majesty to the whole Privy Council or a Committee thereof, the nature of such report or recommendation being always stated in open court ". Now, I hope the noble Lord will believe me when I testify that I have been through a very great number of references to the Judicial Committee under this section, Section 4, and that they cover a very wide range indeed of different kinds of subject matter, but I cannot find one which bears the smallest resemblance to the reference proposed by the noble Lord. I can find only one reference of a question of international law at all—only one ever—and that was a reference in 1934 of the question whether actual robbery was an essential ingredient of piracy jure gentium. But this was because piracy jure gentium is cognisable as a crime in the ordinary criminal courts of the United Kingdom and colonies.

The reference in question, in 1934, was, in effect, an appeal from an acquittal by the courts of Hong Kong of some Chinese junk pirates on the false assumption that actual robbery was an essential ingredient of the crime. As was said, on that occasion nothing could be done to reverse this acquittal, although it was a wrong acquittal, but the principle was considered so serious for the repression of piracy on the high seas that resort was had to a judicial reference in order to prevent a recurrence of a similar decision in any court held under the ægis of the Crown. There were no parties outside the jurisdiction affected directly by the decision, and there was no question but that the decision would have been treated as authoritative at least throughout the then British Empire.

May I say, in passing, that the noble Lord referred to prize appeals—a lucrative source of employment for me in the years immediately succeeding the war. They are simply appeals from courts in this country with regard to ships captured by (as it were) the Navy in order to condemn them as prize. Although strictly speaking these are authorities in international law, it is part of the ordinary administration of justice in this country that those prize appeals go from the Admiralty Court, or the Prize Court as it is constituted under the authority of the Crown during wars, for the decision of prize appeals. In other words, it is part of the ordinary administration of justice in time of war, and the process is simply one in effect of English law although the English prize court and the Privy Council apply the rules of international law.

I must apologise again to the House for taking so much time about this, but I really think it is important and, curiously enough, this has never been stated before, so far as I have been able to find out. The work that I have been trying to do in answer to the noble Lord has, I think, been done for probably the first time. It might at first sight appear that the two references in the 1920s involved the interpretation of the Irish Free State Agreement Act of 1922. But these concerned the implementation of the Agreement as incorporated into domestic municipal law. The first was the appointment of Commissioners under Article 12 in a situation where the Stormont Government would not advise the Governor to act. The second arose under Article 10 of the Agreement, which concerned the entitlement of officials to compensation. Thus both these references concerned, in effect, United Kingdom municipal law alone. The only other question affecting treaties with which the Judicial Committee has been concerned was in the exercise of a special jurisdiction conferred by Statute, and this was not a reference under Section 4. This was a jurisdiction to hear appeals from awards of the Commissioners for dealing with foreign compensation claims founded on the peace treaties of 1815, and this clearly has no relevance to the present case. I have been at great pains to discover that there never has been reference under Section 4 directly concerning the question of Her Majesty's Government's international obligations to another Gov- ernment under an agreement. In addition to my own researches—to which I attach some importance—and those of my office, I attached so much importance to this matter that I asked that the point should be specially checked with the registrar of the Judicial Committee. He confirmed that what I have said is correct.

Is this a coincidence, or is it not a coincidence? Is there a reason for it? I am sure that there is a reason for it. On reflection, I am sure that the noble Lord, Lord Brockway, will see what the reason is. The common factor in all the cases I have examined of references under Section 4 is the conclusive nature of the judgment when it is obtained either because of the ecclesiastical or Colonial authority of the Crown, or because the reference (as in the MacManaway case to which the noble Lord, Lord Shackle-ton, referred) was at the request of one of the Houses of Parliament on a matter such as privilege of which that House had exclusive or effective jurisdiction. Another example in addition to the MacManaway case was the Samuels case in about 1913 and which is reported in the Law Reports.

In the present case the noble Lord, Lord Brockway, proposes a reference on a question on which the Judicial Committee would have no authoritative or binding force whatever. Even assuming—and I am prepared for the purposes of this argument so to assume—that the Crown would regard itself as bound, I have no reason to think that if the report of the Committee favoured the opinion of the present Law Officers (which I have no reason to doubt, and which I personally believe) even the noble Lord, Lord Brockway, would regard himself as bound by it; and still less would anybody who holds other views outside Parliament. There is no reason to suppose that the Republic of South Africa would pay any regard to it at all. None of the African or Asian Governments in the Commonwealth or outside it would be bound by it. I doubt if they would pay much regard to it. Nor would the United Nations or any of its members be bound by it or pay any regard to it.

It seems to me that the noble Lord and those who have suggested this reference—who, as he said, included the previous Attorney General, Sir Elwyn Jones—have basically failed to understand both the nature and the constitutional functions of the Judicial Committee of the Privy Council. I will explain why. Before doing so, may I say in passing that I think it wrong to say that Sir Elwyn Jones or the Law Officers of the previous Government gave any opinion, in the sense that I am about to describe, to the contrary effect to the present Attorney General and the present Solicitor General. This is a misconception. They may have expressed a passing view on the subject; although I am told it is quite clear they never gave a written opinion of any kind and they probably never saw the documents on which this opinion was founded when they were in office.

But I return to my proposition. The noble Lord, Lord Brockway, and those who suggested the reference have failed to understand the essential nature or the constitutional functions of the Judicial Committee of the Privy Council. The Judicial Committee of the Privy Council is basically a court of law, exercising, as I have tried to explain, by delegation the residual powers of the Curia Regis remaining attached to the Crown after the Courts of Common Law and Chancery had been hived off and the jurisdiction of the Papal Curia and various other statutory jurisdictions had been added.

The reference under Section 4 is a convenient method of ascertaining the law when no other jurisdiction is available, but only on condition that when it is delivered, after the judicial hearing, the decision is definitive and effective; only when, to quote from the Latin, in deference to the presence here of the right reverend Prelate, Roma locuta est; finita causa est. It is intolerable for any court of law to be required to adjudicate in a case in which one of the parties affected by the decision has no opportunity of being heard and cannot be expected to treat it as authoritative if it does not agree. I, my Lords, certainly could not be a party to such a constitutional monstrosity.

The second basic fact which the suggestion of the noble Lord, Lord Brockway, overlooks is the position of the Law Officers as constitutional advisers to the Crown in its executive capacity. Law Officers give their professional opinions in a professional capacity; they used to be paid, when my father was Attorney General, for each opinion, but, unhappily, that has disappeared. But their opinion, formally given, is not advice as given by a Minister to his colleagues; it is the advice of a legal adviser to what in other circumstances would be described as a client. For this reason their written opinions are an exception to the rule that confidential documents of one Government are not shown to their successors. If the noble Lord, Lord Shackleton, had given advice to his colleagues, I cannot see it. But if the Attorney General of that Government had given advice, as a Law Officer, to his colleagues, it would be open to me. Such opinions of the Law Officers are normally, though not invariably, shown.

In matters of international law the opinions of successive Law Officers have even been printed and published, and together form an important part of the total corpus of international legal learning. Obviously academic lawyers; obviously party politicians; obviously the Press—obviously anybody else, is free to express doubts or disagreements as to the weight to be attached to advice so tendered. This is a free country. But to seek to undermine the authority, or to question the objectivity, of these opinions by setting up, or attempting to set up, a sort of court of appeal over them; or to substitute a lengthy and probably excessive judicial hearing for the ordinary process of advice to the Government is wholly contrary to the whole constitutional position behind the Office of the Law Officer and to the needs of the machinery of government.


My Lords, may I interrupt the noble and learned Lord? I hope he will forgive me for disagreeing. None of us is challenging the objectivity of the opinions given by the Law Officer. But since the noble and learned Lord has said that it is open for people to disagree or agree, it seems to me to follow that it does not impugn the objectivity of the Law Officers to suggest how it is possible that other people might look on those opinions. But I should not want there to be any suggestion—I am sure he did not mean it but it seemed to be implicit in what he said—that we were in a sense almost querying the good faith of the Law Officer.


Not at all, my Lords: I was fully accepting what the noble Lord said. What I was saying was that it was, first of all, wholly a misunderstanding of the constitutional functions and nature of the Privy Council itself, to suggest that it ought to accept a reference where nobody need treat its findings as authoritative; and secondly, a misunderstanding of the whole function of the Law Officers in relation to the Crown in giving their professional opinion to suggest that there ought to be a sort of court of appeal above them. Of course, the noble Lord said most explicitly that he was not challenging the objectivity or the professional good faith of my right honourable friend the Attorney General, and I fully accept that. But the whole essence of my argument is that it is constitutionally objectionable to suggest that one can treat it as subject to a judicial reference if one does not agree with it. Bringing this argument to a further point, my Lords, there is a further constitutional reason which I personally would find the greatest possible objection to the course proposed by the noble Lord. So far as I am concerned, and I hope so far as the House is concerned, judges must be kept, so far as possible, out of political controversy. Obviously, in the course of his ordinary judicial duties a judge, be he high or lowly, be he a member of the Judicial Committee of the Privy Council, a member of the Court of Appeal or simply a lay magistrate sitting in a magistrates' court, must occasionally, and will occasionally, find himself in what I might describe as the eye of the storm. He may be compelled by virtue of his office to decide a case which cannot fail to give widespread offence, whichever way he decides, in one direction or another. In such a case a judge must not shrink from his duty, He is bound by his judicial oath to do justice to all manner of people, without fear or favour, affection or But it is altogether another thing, without legal proceedings being concerned, without any lis in being, to try to make one of the highest judicial tribunals in the land arbitrate in a highly charged matter between the rival views of two highly motivated political Parties in which the Court has no ordinary jurisdiction, simply because the decision of a technical legal problem on the periphery of the matter (since the Law Officers' opinion relates only to a few helicopters and replacements and not to the general question of arms to South Africa) is incidental to the debate.

I recognise that the Law Officers, in their opinion, were concerned to express a view on the extent of this country's legal obligations and not with questions of wider policy. I know that the noble Lords who have spoken have taken the trouble to study the debate in another place on March 3, and they will know that the whole tenor of that debate shows the virtual impossibility of preventing advice which has been tendered on purely legal grounds from being exposed to the full force of the wind of political criticism and controversy. This is no doubt an occupational hazard of Law Officers; they have to face it. But so long as I hold my present office I do not intend to expose the Judiciary to a similar hazard. If this were once done, it would be done again, and it would end by undermining the independence and integrity of the judges. My Lords, nothing like this has been suggested before, and I very much hope that it will never be suggested again. That is the Answer to the Question.