§ 2.40 p.m.
§ Lord Goodhart
asked Her Majesty's Government:
Whether they will publish the full text of the advice given to them by the Attorney-General on the legal basis for the use of force against Iraq; and the instructions for the giving of that advice.
§ The Lord President of the Council (Baroness Amos)
My Lords, there is a long-standing convention adhered to by successive governments, and reflected in paragraph 24 of the Ministerial Code, that legal advice from the Law Officers is not publicly disclosed. This is consistent with paragraphs 2 and 4d of the Code of Practice on Access to Government Information.
601 The Law Officers advise the Government in confidence. It is very important that both the legal adviser and the client should be able to give and receive advice candidly and freely on the understanding that it will not be disclosed.
§ Lord Goodhart
My Lords, on 17th March we were given a one-page summary of the views of the Attorney-General. The Government have now given an enormous amount of information—which no doubt they were not legally obliged to give—to the Hutton inquiry. Why will not the Government now produce the full legal advice on the basis of which we went to war, which is surely an even more important question that that being considered by the Hutton inquiry? Are the people of this country really going to have to wait for another 30 years before we find the answer to that question?
§ Baroness Amos
My Lords, I hope that in my opening Answer I made the position clear. The Attorney-General's advice on international relations, security and defence is confidential and we never disclose or comment on advice given by the Attorney-General. So far as we are concerned, the Government's policies on Iraq are legal and they comply with our international obligations.
§ Lord Lester of Herne Hill
My Lords, legal professional privilege can properly be claimed by the Government as by any other client on behalf of their legal adviser, the Law Officer. However, is the Minister aware that legal professional privilege can always be waived? Would she not agree that, as my noble friend said, by relying in part on 17th March on a snippet or gobbet of advice from the noble and learned Lord the Attorney-General, the Government have waived their privilege? If not, will she explain why?
If the rule is so inflexible, will the Minister also explain why in cases such as Factortame the opinion of the Law Officers was fully disclosed to courts? In that case, their opinion was that the Merchant Shipping Act would be unlawful under Community law. The rule is not inflexible and rigid, as has been suggested.
§ Baroness Amos
My Lords, I am not a lawyer and cannot go into the details of the noble Lord's final point. I am not aware of the case to which he referred. If it has bearing on the matter, I shall be happy to respond to it. On his specific point on breaching the convention, I shall repeat what I said before. My noble and learned friend the Attorney-General made a statement on 17th March setting out his views on the legality of the use of armed force against Iraq, but his advice was not disclosed. I repeat: the actual advice that he gave to the Government was not disclosed. We are confident that our policies and actions in Iraq are right and consistent with our international obligations.
§ Lord Howell of Guildford
My Lords, we would like to have a say. Although in our view there was and is a robust case, under Articles 39 and 41 of Chapter 7 of the United Nations Charter, for getting rid of that madman and mass murderer—the world will be a better place still when he is dead—does the noble Baroness agree that much ambiguity remains, as the questions that she is receiving indicate? Would it not be better not only to publish a summary of the Law Officers' advice, despite it breaking precedent, but to have a thoroughgoing judicial inquiry—much wider than Hutton—so as to reassure the public and, even more importantly, the troops in Iraq of the Tightness of our cause?
§ Baroness Amos
My Lords, the Government are absolutely convinced of the Tightness of our cause. We have made that position clear time and again and will continue to do so. I said that in this House last week. The basis on which we went to war was that Iraq and Saddam Hussein flouted 17 UN Security Council resolutions with respect to weapons of mass destruction. That remains the case.
§ Lord Marsh
My Lords, does the Minister not agree that one of the significant differences between a democracy and a dictatorship is that a government's point of view alone should not be considered when a decision of such magnitude is taken?
§ Baroness Amos
My Lords, I totally agree. That is why we had debates in this House, a number of debates in another place, and a significant debate in the other place with a vote. It is the first time that we have had that.
§ Lord Davies of Coity
My Lords, in a democracy, it is the decision of the elected government to which we must adhere, not the advice that that government are given. Like my noble friend the Leader of the House, I am not a member of the legal fraternity and certainly not a lawyer. However, am I right in believing that lawyers, including those on the Liberal Democrat Benches who have asked the questions, preserve and protect the confidentiality that they have with their clients?
§ Baroness Amos
My Lords, one would have to ask the lawyers on those Benches, but I am sure that that is the case. I am being asked for the Government to do something unprecedented—to publish the advice that we were given by my noble and learned friend the Attorney-General. We have already done something not done by any other government in terms of the statement that he made on 17th March, which set out very clearly his views on the legality of the use of armed force against Iraq. However, a government have to retain the right to keep confidential the advice that they are given by their legal officers.
§ Lord Wright of Richmond
My Lords, the Minister says that the advice of the noble and learned Lord the Attorney-General is confidential. Speaking as someone 603 who was in the public service for 36 years, I was brought up to believe that the advice of public servants to Ministers was also confidential. Does she not agree that the proceedings of the Hutton inquiry have totally changed the situation regarding confidentiality?
Baroness Amos: My Lords, everyone in the House would agree that the situation is unprecedented. Information became available through Hutton that we all know would have been kept confidential for 30 years under the rules that currently govern the advice that officials give to their Ministers. That is not a usual event. To change completely the rules that govern the relationship between officials and Ministers, and between a government's law advisers and that government, is not a decision that any government would want to make.
§ Lord Thomas of Gresford
My Lords, we ought not to assume that the views of the legal basis for the use of force against Iraq, which was how the matter was described by the noble and learned Lord the Attorney-General in March, accord with the advice that he gave to the Government. If he gives us a summary of his advice, is it not in the public interest that we be told on what those views are based in its entirety? What is being concealed?
Baroness Amos: My Lords, we were in an unprecedented situation in March. The Government made it absolutely clear that we were happy for my noble and learned friend the Attorney-General to make a statement setting out views on the legality of armed force because a number of questions were being asked in relation to that. However, we preserved what is important for any government to have; that is, confidential legal advice. It was on that basis that the advice itself was not published. That was considered such a serious issue between the Government and Parliament and the Government and the people that it was felt important that the Attorney-General made a statement. He made a statement on the basis of the rumours which were being published about the nature of his advice, so he made his views on the legality of the use of armed force absolutely clear. However, the Attorney-General did not publish the advice itself.