HL Deb 06 November 2003 vol 654 cc128-9WA
Lord Lester of Herne Hill

asked Her Majesty's Government:

Further to the answers by the Lord President on 13 October (HL Deb, cols. 600–01), whether the advice given to them by the Law Officers was disclosed to the courts and the public in the Factortame litigation; and, if so, what is the justification for disclosing such advice in the course of judicial review proceedings but not to Parliament.[HL4892]

The Attorney-General (Lord Goldsmith)

The Law Officers' advice of 31 March 1987 was disclosed to the other parties in theFactortame litigation during the proceedings in the Divisional Court. The contents of the advice were set out by the court in its judgment of 31 July 1997 and thereby entered the public domain.

The issue in the Factortame case was whether, by including provisions of the Merchant Shipping Act 1988 that breached the EC Treaty, the Government had acted in a way that was sufficiently serious to give rise to liability to pay damages. The Law Officers' advice was disclosed to the other parties in these proceedings because it was relevant to an issue to be decided by the court, namely whether the Government had acted in reliance on legal advice. This was relevant to the question of whether its breach was sufficiently serious to give rise to a liability in damages.

Lord Lester of Herne Hill

asked Her Majesty's Government:

Further to the answer by the Lord President on 13 October (HL Deb, cols 600–01) whether the convention adhered to by successive governments that legal advice from the Law Officers is not publicly disclosed has been departed from; and, if so, in what circumstances. [HL4893]

Lord Goldsmith

The Government do not maintain records of occasions on which exceptions have been made to the convention against disclosure of Law Officers' advice.

I am aware of only two cases in which Law Officers' advice was disclosed. In both cases, disclosure was made for the purposes of judicial proceedings. In 1993, Law Officers' advice relevant to the subject matter of the Arms to Iraq inquiry was disclosed to the Scott inquiry. The advice was published in an annex to the inquiry report. Law Officers' advice on the 1988 Merchant Shipping Act was disclosed to the other parties in the course of the Factortame litigation in which Spanish fishermen were seeking damages from the Government for a breach of Community law.

I am aware of three other cases in which the views of the Law Officers on a particular matter were disclosed, but not the actual advice. In February 1971, the substance of the Law Officers' advice relating to the UK's obligations to supply arms to South Africa under the Simonstown Agreement was published in a command paper (Cmnd 4589). In February 1993, the views of the Law Officers' advice were disclosed in the debate in the other House on the Maastricht Treaty. In March this year I set out in a written answer a summary of my view of the legal basis for the use of force against Iraq.