HC Deb 26 February 2004 vol 418 cc427-40 1.12 pm
The Solicitor-General (Ms Harriet Harman)

This morning, my right hon. and learned Friend the Attorney-General made a statement in another place about the prosecution of Katharine Gun. I apologise to the shadow Attorney-General and to the hon. Member for Torridge and West Devon (Mr. Burnett), who speaks for the Liberal Democrats on these issues, for the lateness in getting the Attorney-General's statement to them. His statement is as follows.

Yesterday, at the central criminal court, the Crown offered no evidence in the case of Katharine Gun. Ms Gun had been charged under section 1 of the Official Secrets Act 1989. The effect of offering no evidence was that the case against Ms Gun was discontinued. Before I answer the questions that hon. Members will put to me today, I hope that it will help the House if I explain the process in respect of prosecutions under the Official Secrets Act.

Prosecutions under the Official Secrets Act are governed by the normal rules applied by the Crown Prosecution Service when considering any prosecution: the code for Crown prosecutors. There is an additional requirement for the Attorney-General's consent before a prosecution can go ahead under the Official Secrets Act. May I say at the outset that when making decisions under the code for Crown prosecutors, the CPS acts in the public interest? It takes independently the decisions for which it is responsible. I also remind the House that when making decisions on whether to consent to a prosecution, the Attorney-General makes his decisions in the public interest, not in the interest of the Government.

When the CPS is considering a prosecution under the Official Secrets Act, the normal code rules require that it first consider the sufficiency of the evidence—evidence to make out the case and evidence to rebut any defence that might be available and that might be raised. It will not take further action if it thinks that there is insufficient evidence. If its view is that there is a realistic prospect of conviction—that is, the evidence is sufficient to make it more likely than net that a jury would convict—it then considers the public interest test. In the Gun case, the evidential test was met in the view of counsel instructed by the CPS, and in the view of the Director of Public Prosecutions. The evidential test having been met, the CPS next moved on to the public interest test. That test is, quite simply, to ask whether the prosecution would be in the public interest. As this prosecution was taking place under the Official Secrets Act, it also required the consent of the Attorney-General.

When considering whether to consent to a prosecution under the Official Secrets Act, the Attorney-General carries out a Shawcross exercise, whereby he seeks the views of a ny ministerial colleagues who may have an interest in the case. That is so that he can be informed of their views on the public interest considerations of the case within their ministerial or departmental responsibilities. When those ministerial views are expressed, the Attorney-General takes them into consideration when deciding whether to give his consent.

In the Gun case, the view of the independent prosecutor, senior Treasury counsel Mark Ellison and his junior Ed Brown, on the review of the evidence available at that time was that the evidence afforded a realistic prospect of conviction. The Crown Prosecution Service applied for the Attorney-General's consent, and he undertook a Shawcross exercise by way of a Shawcross letter to the Secretary of State for Foreign and Commonwealth Affairs, in view of his departmental interest. That letter was copied to other interested ministerial colleagues. Views were expressed that, as always with the Shawcross exercise, the decision was the Attorney-General's. He gave his consent to the prosecution on 13 November 2003.

Under the code, it is the obligation of the prosecutor, as a case progresses, to keep under review the prospects of a conviction resulting. If, on that review, the prosecutor forms the view that the evidence is such that there is no longer a realistic prospect of conviction, it is his or her duty to withdraw the prosecution. Counsel reviewed this case. The decision not to proceed with the prosecution was made by the CPS, after consultation with the Attorney-General. It was based on the advice of senior Treasury counsel in the case. The evidential deficiency related to the prosecution's inability within the current statutory framework to disprove the defence raised on the particular facts of the case. The view of senior Treasury counsel and the DPP was that there was no longer a realistic prospect of conviction.

The prosecution consulted the Attorney-General before offering no evidence in this case. However, the decision not to pursue the case was that of the Crown Prosecution Service, as it was based on the view that there was no longer a realistic prospect of conviction. The Attorney-General made it clear, however, that he agreed with it. At the central criminal court on 25 February 2004, senior Treasury counsel informed the court that the prosecution was offering no evidence, as there was no longer sufficient evidence for a realistic prospect of conviction. Perhaps at this point I may tell the House of a statement made this morning by the Director of Public Prosecutions, Ken Macdonald. He said: Senior Treasury Counsel prosecuting this case gave advice, with which the Director of Public Prosecutions fully concurred, that there was no longer a realistic prospect of convicting Katharine Gun. As has been commented upon there was, in this case, a clear prima facie breach of section 1 of the Official Secrets Act 1989. The evidential deficiency related to the prosecution's inability, within the current statutory framework, to disprove the defence of necessity to be raised on the particular facts of this case. This determination by the prosecution had nothing to do with any advice given by the Attorney General to Government in connection with the legality of the Iraq war. It was also a determination made by the prosecution in advance of the defence request for disclosure which came on 24 February 2004. The Attorney General was consulted and concurred. But the decision to offer no further evidence was one made by the Crown Prosecution Service as an independent prosecuting authority. It was a decision taken solely on legal grounds and in accordance with the Code for Crown Prosecutors, free from any political interference. That was the DPP's statement.

I recognise that many in the House will want to know more about the detailed basis on which counsel concluded that there was no longer a realistic prospect of conviction. However, as the matter concerns issues of intelligence, it is not appropriate for me to go into that, even to this House.

As for the impact of the decision on the conduct of future prosecutions, the substantive law is always kept under review, and the effect of particular prosecutions on the substantive law considered.

Mr. Dominic Grieve (Beaconsfield) (Con)

May I first thank the Solicitor-General for giving me an advance copy of the statement? I make no criticism of the slight lateness of its arrival, and I accept her apology for that. I should also like to say at the outset that I see no reason to express any criticism whatever of the conduct of the Attorney-General, on the facts as they are available at present, or indeed of the Solicitor-General. Nevertheless, this case raises some very important and worrying features.

It is an unusual feature of the case, as the Solicitor-General will confirm, that the facts of Ms Gun's actions were not in dispute. The defence that had been raised was one of necessity. When was that defence first expressed? Was it, as has been suggested and as I believe to be the case, in the numerous interviews that took place between Ms Gun and her interviewers, under caution, in the spring and summer of last year, leading to her being charged with this offence in November?

Was it the case that, prior to charge, the Director of Public Prosecutions and the Attorney-General were consulted, so that the Shawcross exercise of which the Solicitor-General spoke was carried out? If so, why did the evaluation of the chances of conviction change so dramatically between the date of charge in November and the events yesterday? When did it become clear that the case would not succeed? When was it decided by the Attorney-General that it should not go ahead? I have heard what the Solicitor-General said about that decision being made prior to a request for further material from the prosecution on 24 February, but will she be more specific about that? I understand that the Attorney-General had discussions with the Foreign Secretary on 14 and 24 February. Will she amplify from that when the decision was taken?

Why was the view changed? There is no suggestion in this case that a defence statement had yet been served, because none was required prior to the plea and directions hearing. It was suggested by the Attorney-General in his statement in the House of Lords that new material had come to light. I appreciate that the Solicitor-General will not be able to comment on specific material, but will she tell the House why that material was not available earlier? Was the material produced for the prosecution by those supplying it with information within the intelligence services, or was it served by the defence?

I understand that the Attorney-General properly consulted Cabinet colleagues, as he is entitled to do under the Shawcross rules. As I said earlier, I believe that he consulted the Foreign Secretary on at least two occasions. Will the Solicitor-General tell us whether, in addition to that, the Prime Minister was consulted about this case at any time between its first investigation and its discontinuance? It has been widely suggested and publicised that the discontinuance followed a request by the defence for a copy of the Attorney-General's advice on the Iraq war. I cannot see a reason why the Solicitor-General cannot indicate whether such a request was made prior to discontinuance yesterday, and I would be grateful if she would tell the Roust whether that was indeed the case. I would obviously agree with her if she were to confirm that that document would be covered by privilege and therefore be unobtainable, unless of course the Government chose to waive the privilege upon it.

The Attorney-General made an important point in his statement, which was repeated by the Solicitor-General: The evidential deficiency related to the prosecution's inability within the current statutory framework to disprove the defence raised on the particular facts of the case. That is a very serious statement, and if that is so, is the Solicitor-General saying that, under the Official Secrets Act, no defence of necessity can be rebutted, so that in future no such prosecution can ever succeed, allowing anyone who chooses to leak official documents—potentially causing great damage to our freedom—to escape conviction? Or is she saying that, as Official Secrets Act prosecutions usually require the withholding of certain material from a jury under public interest immunity, resulting in the acceptance by the jury of the good faith underlying the prosecution process brought by the state, that the current state of public distrust of the Government over their actions in Iraq has rendered the process of justice impossible in this instance? Whichever is the case, this is a disastrous state of affairs for the due process of justice in this country.

In the House of Lords, the Attorney-General suggested that a review of the Official Secrets Act was to be conducted. Will the Solicitor-General tell the House when that might happen and when a statement might be made to the House if the implications of this case? There have been previous requests by many people to see a copy of the Attorney-General's advice. There are perfectly good legal reasons for not making it available, but does the Solicitor-General agree that it is open to the Government, if they so choose, to waive their privilege and to allow the advice to be made available to the public? Will she consult her Cabinet colleagues about whether that might help to restore faith in the administration of justice in this country? There are very serious matters that go way beyond the issues surrounding the case in the Solicitor-General's and Attorney-General's statements. I very much hope that the Solicitor-General can clear up some of these matters.

The Solicitor-General

The hon. Gentleman asked whether the defence of necessity was disclosed at an early stage and therefore considered by those who had conduct of the prosecution. It is clear that it became evident at an early stage, if not from the outset, that it was a realistic prospect that Ms Gun might raise the defence of necessity. That was known and considered before the charge. Prior to the charge, the Shawcross exercise was undertaken. The Attorney-General has to consent to a prosecution going forward.

The hon. Gentleman asked why the evaluation had changed. That is a difficult question for me to answer as fully as I would like to. He will know from his experience at the Bar that evidence comes and goes, and that a case has to be kept under constant review. If at any point counsel with the conduct of the case decides, on the balance of all the admissible evidence that might go to the proving of the charge or the rebutting of the defence, that there is no longer a realistic prospect of conviction, it is counsel's duty to make his view known that that is the case.

The hon. Gentleman asked when the Attorney-General decided not to go ahead with the case, but I can tell the House that it was not decided by the Attorney-General. He was told of the view Treasury counsel, with which the Director of Public Prosecutions concurred, relating to the lack a sufficiency of the evidence. The Attorney-General was told about, and agreed with, the view of Treasury counsel, but it was actually the decision of the prosecuting authorities, not the Attorney-General.

I ask the House to understand the separate nature of the Attorney-General's discussions with the Foreign Secretary. The Shawcross exercise means that the Attorney-General will consult his ministerial colleagues in deciding, as part of his consideration, whether a prosecution is in the public interest. He will do that because the prosecution might affect the Departments for which they are responsible.

That is quite separate from the issue of evidential sufficiency. As the Attorney-General explained in the other place this morning, the discussions that he had on 14 and 24 February were about the evidential questions. As a matter of courtesy, he was reporting to the Foreign Secretary on the evidential issues that had arisen, and discussing them with him. He was not asking for the Foreign Secretary's views on whether the prosecution was still in the public interest, nor was he giving the decision on the sufficiency of evidence to the Foreign Secretary. He was not consulting the Foreign Secretary; he was simply explaining to him, and discussing with him, the evidential position. No defence statement had been served—this brings us back to the issue of the defence of necessity—but obviously counsel for the prosecution, and the prosecution as a whole, are under a duty to anticipate what any defences might be.

The hon. Gentleman asked whether any request by the defence for the Attorney-General's legal advice to the Prime Minister on the legal basis for the use of force in Iraq would have been covered by privilege. That question did not arise, and therefore the question of whether the Attorney-General had to decide whether he would claim legal privilege did not arise either, because the request for disclosure had not been made.

The hon. Gentleman asked about the future of section 1 of the Official Secrets Act. He asked whether it was now the case that no defence of necessity could ever be rebutted. All I can say is that before we rush to any conclusions about where this case leaves the state of the law, careful consideration must be given—and no doubt will be given—by the Home Secretary. It will be for him to come to the House if he has any views that he wishes to convey to it about the state of the Act. As for whether the prospect of a conviction receded because of the anticipation of public distrust of the Government—I think that that is what the Hon. Gentleman was alleging—that was not an issue in relation to the discontinuance of the case.

The hon. Gentleman asked when the Official Secrets Act would be reviewed. I think that that is a matter for the Home Secretary. As I have said, in all cases in which there has been a significant event in the course of a prosecution, the implications for the substantive law that might arise from that prosecution are always considered. I said no more than that.

The hon. Gentleman asked whether the Government should waive confidentiality—whether either the Prime Minister or the Attorney-General should waive the normal rule, which is that legal advice to Government is confidential. He suggested that it should be waived. I remind him that because of exceptional public interest in the question of the legal basis for the use of force in Iraq, the Attorney-General did, on 17 March, set out the basis on which he believed in the lawfulness of the use of force in Iraq; and he was able to reaffirm this morning, in another place, that his opinion of whether his view of the law was right had not changed.

No doubt many people will have examined the law on the use of force, and, as we know from lectures and newspapers, many of them do not agree with the Attorney-General. I should point out that when the Prime Minister appoints the Attorney-General, he cannot shop around for legal advice. If the Attorney-General tells him that he cannot do something, he cannot do it. He is obliged to take the Attorney-General's advice: that is the basis and the nature of the appointment. Similarly, if the Attorney-General tells the Prime Minister that he is entitled to do something, the Prime Minister is entitled to rely on that, irrespective of whether many other people take a different view.

I realise that I have left many questions unanswered, but I can at least explain to the House what the Attorney-General's responsibilities are under this procedure, and make it clear that he fulfilled them with integrity.

Mr. John Burnett (Torridge and West Devon)(LD)

I thank the Solicitor-General for giving me notice of her statement.

When deciding whether to proceed with a prosecution, the Attorney-General must be convinced first that there is a realistic chance of success and secondly that it is in the public interest to proceed. He believed that both conditions were met in this case. My understanding is that the evidential test was passed on the basis of Ms Gun's first interview. Despite what the Solicitor-General has just said, I am still not sure what has changed since that first interview, and what assessment was made subsequently to change the decision to prosecute.

The Solicitor-General has said that it was clear at an early stage that Ms Gun would raise the defence of necessity. I concede—and it is entirely proper—that we must safeguard our intelligence. The defence made a submission two days ago seeking disclosure of the Government's legal advice on the legality of the Iraq war, because it believed that unless the Government could prove they were acting legally, Katharine Gun had the defence of acting in the public interest. Yesterday, Treasury counsel informed the court that the prosecution was to be abandoned. The Solicitor-General will be aware that there has been considerable speculation that it was abandoned because the Government feared that at the trial evidence would be adduced of the grave misgivings of many officials in a number of Departments of State about the legality of the war with Iraq. I respect both the Attorney-General and the Solicitor-General, but unless they put in the public domain, or submit to Lord Butler's inquiry, the compelling legal reasons for the withdrawal from the prosecution, we can only assume that the law officers have capitulated to the Executive, and have failed in their duty to the House and the country.

The Solicitor-General

I take exception to the suggestion that the Law Officers have done that, and that the Attorney-General failed to carry out his duties as he was required to in this matter. Let me say most emphatically that he did not. If the hon. Gentleman accepts what I said in my statement, he will agree that that is not what has happened.

The hon. Gentleman said that many officials had misgivings. That might well have been the case, but the question of whether the Prime Minister had a lawful basis for the use of force is one on which he takes the advice of the Attorney-General. It is not for him then to second-guess that by taking the view of many officials who have misgivings. The system has to run like that. I assure the House that the enabling that is conferred on the Prime Minister by the Attorney-General's saying that he can do something is matched by the Attorney-General's ability to tell the Prime Minister or his ministerial colleagues that they cannot do something. It works both ways.

The hon. Gentleman asked me whether there was a connection between the discontinuance of the case and the request for disclosure. I can reaffirm that the discontinuance was not connected to a request for disclosure of the Attorney-General's full legal advice or the anticipation of such a request being made. I hope that the hon. Gentleman will accept that. I may not have been able to answer many other questions that he would like to put, but I hope that he accepts that there is no connection between the anticipation of a request or the submission of a request for disclosure of the Attorney-General's advice on the legality of the war in Iraq and the discontinuance of this case.

The hon. Gentleman mentioned that the Attorney-General must consider two things when giving his consent to a prosecution under the Official Secrets Act: the evidential test of whether there is a realistic prospect of a conviction and the public interest test. I remind him of something that I know he knows, which is that the evidential test does not become a matter for the Attorney-General's consent. The evidential test remains the custody of the prosecution. Consent is a wider and different issue about the public interest. The evidence was regarded as sufficient and the Attorney-General was asked whether the case was in the public interest. What changed was that, as the case progressed, Treasury counsel took the view that there was no longer a sufficiency of evidence, and he brought that to the Attorney-General's attention. At that point, the Attorney-General was not considering whether the case was in the public interest, but whether there was sufficiency of evidence.

Hon. Members will know that there must be evidence not just that supports the charge, but to rebut the defence. The evidence that is available changes over time in every case. Much has bee n said about this being a sudden decision. The House would rightly criticise the authorities—[Interruption.] Sorry, am I taking too long?

Hon. Members


Mr. Deputy Speaker (Sir Alan Haselhurst)

Order. I do not think that it was anything I said, but I was intending to say that the exchanges between Front-Bench Members have now taken half an hour. I appeal to hon. Members. There is time-limited and important business still to come, and notwithstanding the legal complexities of this subject, I would appreciate brief questions and equally brief answers.

Glenda Jackson (Hampstead and Highgate) (Lab)

Are the views expressed under the Shawcross exercise furnished to the defence, and did they contribute in any way to the decision that was taken yesterday?

The Solicitor-General

As I understand it, the Shawcross letters are not furnished to the defence. They go to the Attorney-General's decision whether the prosecution is in the public interest, and are not a matter of evidence.

I apologise to the House for taking so long to answer questions put by Front-Bench Members, but these are complicated and nuanced issues of some constitutional depth. I would rather choose my words carefully and get it right than mislead the House. However, I realise that other hon. Members have tabled urgent questions and they want to be able to ask them.

Mr. Nigel Jones (Cheltenham) (LD)

GCHQ is in my constituency, and Katharine Gun is one of my constituents. I have supported her through the recent difficult months, during which she has felt vulnerable, and I felt the relief that she experienced yesterday. Have the Government given any thought to compensation for legal costs and any other compensation that it may be appropriate to give Ms Gun to help her to rebuild her life?

The Solicitor-General

Obviously, it will be for the defence to apply for legal costs if it is so minded, and the processes will be applied in the usual way.

Mr. Harry Barnes (North-East Derbyshire) (Lab)

On the public interest test, is my right hon. and learned Friend aware that, through the Enterprise Act 2002, the Department of Trade and Industry has virtually scrapped public interest concerns in its area of responsibility? How safe is the public interest in the Government's hands?

In her statement, my right hon. and learned Friend referred to ministerial colleagues who may have an interest in the cases, because of public interest considerations. Is not there a distinction between ministerial interests and the public interest?

The Solicitor-General

Ministerial interest is not a question of curiosity, but whether Departments are affected by the scope of the issues in any particular prosecution. My hon. Friend asked whether the Department of Trade and Industry takes the public interest sufficiently into account. I was not aware that DTI prosecutors no longer operate the evidential and public interest tests. If that is so, I will correct the position, but that is not the situation as I understand it.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con)

Is not it plain that Katharine Gun was going to allege that what she did was necessary and justified? Is not it astonishing that the Government did not feel able to rebut that contention? Does not the right hon. and learned Lady understand that many of us who opposed the war strongly suspect that in the Government's possession are documents that they would have been obliged to produce that would haw shown that the war was unlawful and unnecessary? It was because of their reluctance to put such documents before the court that they felt unable to rebut the defence.

The Solicitor-General

No, that was not the case. It is not a question of a judgment having been made that if we went ahead it would have involved us putting forward these documents, so we decided to pull the plug. That was not the case. All I can refer to in relation to the evidential obstacles is what I said in my opening statement, and that is the position

John McDonnell (Hayes and Harlington) (Lab)

The trial of Katharine Gun would inevitably have had to address the question whether Mr. Frank Koza, senior official of the United States National Security Agency, had requested the Government's help on an eavesdropping "surge" on delegates from six non-permanent members of the United Nations Security Council. This is a matter of the gravest public interest, which has been heightened today by my right hon. Friend the Member for Birmingham, Ladywood (Clare Short), who was asked whether British spies were instructed to carry out operations within the UN on people like Kofi Annan and she replied, "Yes, absolutely."

What route is available to us now to seek the truth before the House?

The Solicitor-General

I can at least reassure my hon. Friend that, in all respects, the Government act within international and domestic law in their dealings at home and abroad.

Mr. William Cash (Stone) (Con)

I hope that the Solicitor-General will understand when I say that I found much of what she said pretty unconvincing. Surely it is in the public interest to prosecute such a blatant breach of the Official Secrets Act. The Shawcross exercise seems to have played an enormous part in the decision-making process. It certainly leaves me unconvinced by the explanation that we have just been given.

With respect to the right hon. and learned Lady's assertion that the Prime Minister is obliged to take his law from the Attorney-General, I refer her to a letter I received from the previous Clerk of the House, Sir William McKay. He quotes Balfour in 1901, and says: 'The Law Officers have no control over the legal action of the government. A minister is not obliged to take his law from the Attorney General'. Accountability thus rests with the (ministerial) decision-taker. Therefore, it is open to the Prime Minister and the Foreign Secretary to release the opinion of the Attorney-General, and should do so.

The Solicitor-General

I remind the hon. Gentleman that the decision on any action by a Department of State or the Prime Minister is for the Minister concerned or the Prime Minister. The legality of the action is a question for the Attorney-General. That is quite straightforward. It is not open for a Minister to obtain the Attorney-General's legal advice, for the Attorney-General to say "That is not within domestic or international law" and for the Minister then to go ahead and do it. That is not what happens. If it did, it would be unacceptable. I emphasise that that is not what happened. There is not a take it or leave it attitude about the legality of Government actions. There is not a shopping around for whose advice to take. The Government have made it clear that they will not act in breach of international or domestic law, and they have only one authoritative source of legal advice, aside from the courts, and that is the Attorney-General.

Mr. Cash

And Balfour?

The Solicitor-General

I am sorry. I cannot comment on Balfour. That would take too long.

I am disappointed that the hon. Gentleman found what I said unconvincing because I have tried to be as clear as possible. He says that it seems that the Shawcross exercise played a large part in the discontinuance of the case. I do not know how many times I have to repeat it, but neither the Shawcross exercise nor any considerations arising from it played any part in the discontinuance. The Attorney-General spoke to the Foreign Secretary on both 14 and 24 February; it was not a secondary Shawcross exercise along the lines of "Shall we drop this case? What do you think?" It was simply a matter of reporting to him about evidential developments that had been identified by Treasury counsel in the process of the case and that materially affected the case to the extent that, as we now know, the prosecution decided to discontinue it.

Denzil Davies (Llanelli) (Lab)

Given the reasonable assumption that the defence of necessity must have been based upon a belief by the defence that the war was illegal, and since my right hon. and learned Friend has said that the Government would not be able to rebut that defence, does it not follow that the Government are not able to disprove the assertion that the war was illegal?

The Solicitor-General

No. The defence of necessity can be based on many issues.

Sir Patrick Cormack (South Staffordshire) (Con)

As one who deeply deplores the actions of Katharine Gun, and is somewhat bemused and disappointed by the Attorney-General's decision, I should like to ask the Solicitor-General what steps can be taken to preserve the trust and confidence that are and must be at the heart of any civilised Government in a democratic society. In that context, how soon can we have a review of the Official Secrets Act?

The Solicitor-General

I cannot add to what I have already said, except that the question of the implications for the Act will have to be considered by my right hon. Friend the Home Secretary.

Donald Anderson (Swansea, East) (Lab)

Many of us must surely still be puzzled as to what was new; what of fundamental importance happened between the initial decision of the Attorney-General and the decision to discontinue. We know that the defence of necessity was anticipated. We know that any public anxiety about the legal basis of the war was a constant. We know that the defence had not yet made any request for particulars. What is the lacuna in the law that has been revealed? Will it be stopped? Is there not otherwise a great danger that other people in a position similar to that of Ms Gun will feel that they can disobey their obligations under the Official Secrets Act and talk to newspapers?

The Solicitor-General

It was an issue of evidence in this case, not of a lacuna in the law. I agree with my right hon. Friend; he is right to say that it was not a question of any late identification of the likelihood of the defence of necessity being raised. That had been anticipated from the outset. I repeat also that he is right that it was not a question of whether the disclosure of the Attorney-General's legal advice would be requested. That was not an issue.

I apologise to the House, as I appreciate that without being able to go through all the intelligence that comprised all the evidence forming not just the basis of the charge, but the basis on which the defence would be rebutted, hon. Members will not feel fully in the picture. But one of the characteristics of the security services is that people are supposed not to be put fully in the picture.

Mr. David Trimble (Upper Bann) (UUP)

The Solicitor-General has necessarily left some questions unanswered. None the less, she has been able to answer certain questions, and the House will have noticed the emphasis with which she has answered particular questions. Does she agree that it is a very good thing that she, and the Attorney-General in another place, are in a position to come to Parliament so promptly to deal with these matters and to be able, as she and other hon. Members have, to steer their way round those areas that have to be kept to, as it were, the discretion of the prosecuting authorities? Would it not do enormous damage to the House and its standing in the country if, as a result of some jejune notions about the separation of powers, these issues could not be ventilated here?

The Solicitor-General

I thank the right hon. Gentleman for his comments. I should like time to reflect on whether it was a thoroughly good thing for me to come to the House today to make this statement. Certainly, the Attorney-General takes very seriously his accountability to Parliament, through another place, and I take very seriously my responsibility to be accountable to this House. For the most part—nearly wholly, but not exclusively so—we exercise our responsibilities in the public interest, not in a party political way and not in the Government's interest. To the extent that we can, we are open with Opposition Back-Benchers and Front-Benchers, as we are with our ministerial colleagues and Back-Benchers. Law Officers are in a special position. That is why I emphasise that there are procedures, that they are robust and that they have been followed.

Mr. Jon Owen Jones (Cardiff, Central) (Lab/Co-op)

You will be pleased to hear, Mr. Deputy Speaker, that I cannot speak lawyerly language, and do not wish to do so. Is not this case a very simple one, in that the Government decided that they could not convince a British jury that they had gone to war legally?

The Solicitor-General

That is not the case. My hon. Friend is entitled to assert it, but I ask hon. Members at some point to believe what I have said, which is that it was not an issue about the Attorney-General's advice on the legality of war or about second-guessing the extent to which the jury trusted the Government. I ask my hon. Friend to believe that that is the situation. He might well be mystified as to what happened, but that certainly is the situation.

Richard Ottaway (Croydon, South) (Con)

The Solicitor-General ha said many times what the reasons were not for there being no realistic prospect of conviction. She said that she could not give a detailed basis for that, because it concerned intelligence issues. Is it fair from that to reach the conclusion that it was for matters of intelligence that she reached that conclusion?

The Solicitor-General

As I have said, it was a question of what evidence was available within the normal limitations, including statutory limitations, not a question of what evidence was comfortable, both to prove the charge and to rebut the defence. It was not the case that the Government looked at the evidence and decided that they did not want it in court and therefore pulled the plug. Were it the case, the Director of Public Prosecution's statement would not be true.

Mr. Hogg

That is exactly what happened.

The Solicitor-General

I say this to the right hon. and learned Gentleman, who is intervening from a sedentary position: the Director of Public Prosecutions has made a statement, which I have read to the House. I ask the right hon. and learned Gentleman to accept that he has made that statement and that it is the truth.

Jeremy Corbyn (Islington, North) (Lab)

The Solicitor-General said that many questions remain unanswered and that further questions perhaps need to be asked. May I ask her one more? Given that the case against Katharine Gun was dropped and no evidence was put forward, can we all assume that the Solicitor-General and the Government accept Katharine Gun's defence of public interest overriding her loyalty—or not—to her employer, and that she will now be reinstated in the service?

The Solicitor-General

That is a very good question and I am actually going to answer it. The Government do not accept the public interest defence, of necessity. As my hon. Friend will know, in the Shayler case a decision was taken in the Court of Appeal that did not then go to the House of Lords, in which the Government made their position clear on that issue.

On whether this was an eleventh-hour, last-minute discontinuance, perhaps I should remind the House that this case had not been set down for trial and no trial date had been set. This was not an eleventh-hour decision; in legal terms, it was taken quite early in the morning.

Mr. Michael Weir (Angus) (SNP)

The case against Katharine Gun arose initially because of allegations that GCHQ was involved in spying on members of the UN Security Council, as has been amplified this morning by the former Secretary of State for International Development. Does the Solicitor-General accept that any such action is a clear violation not only of the Vienna convention on diplomatic relations, but —perhaps more importantly—of the 1946 general convention on the privileges and immunities of the United Nations? Article 2(3) of the convention states: The premises of the United Nations shall be inviolable. The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative judicial or legislative action. If such operations did take place, those who authorised them and carried them out were themselves in breach of the law. Will there be an investigation, and will action be taken against those who authorised and carried out these surveillance operations?

The Solicitor-General

I am afraid that all that I can say in response to the hon. Gentleman is that the Government comply at all times with their international treaty obligations, as well as with domestic and international law. That is not just a throwaway line—it is a very serious process.

Mr. Colin Challen (Morley and Rothwell) (Lab)

While we are left in this mystified state, it is fair for Members to speculate about the reasons why this prosecution was withdrawn. I wonder whether, a la Clive Ponting, there was a fear that no jury in the land would actually find this woman guilty. Echoing the points made earlier, I wonder whether the substantive issue is being buried under the various legalities. The substantive issue is whether or not we acted at the behest of the American Government, and perhaps it should be referred, at the very least, to the Intelligence and Security Committee, so that these questions can be investigated in the usual way and we can have a report on that substantive issue.

The Solicitor-General

Obviously, the question of what the Intelligence and Security Committee decides to look at is a matter for that Committee, which regularly hears from the Attorney-General in person.

My hon. Friend wonders whether no jury would ever have found this young woman guilty. The nature or characteristics of this particular defendant did not contribute to this decision, so I can reassure him that his speculation on that point is wrong

Mr. Quentin Davies (Grantham and Stamford) (Con)

Has the right hon. and learned Lady any notion at all—she certainly has not expressed it this afternoon—of the enormous damage that this shambolic incident has done to the credibility of the Official Secrets Act and therefore to the credibility of our ability to keep our secrets, and to the confidence that our allies and partners have in that ability; and to our national security and safety in an age of international terrorism? Does she agree that this morning, even greater damage was done to those essential elements, and will she tell the House now whether the right hon. Member for Birmingham, Ladywood (Clare Short) has herself signed the Official Secrets Act?

The Solicitor-General

I think that Ministers are covered by the Official Secrets Act whether or not they sign it. The hon. Gentleman will know that the substantive law is a matter for this House, and that the operation of the law is a matter for the independent police activities and prosecution service. If there is to be a discussion of the substantive law, so be it, but so far as the independence of the police investigation, the Crown Prosecution Service and the Director of Public Prosecutions is concerned, that must remain.

Mr. Alistair Carmichael (Orkney and Shetland) (LD)

If the view was reached that there was no longer sufficient evidence for a realistic prospect of conviction, and if the defence of necessity was known to the Crown at the outset, does that mean that the Crown decided that it could no longer rely on evidence on which it was initially going to rely, for reasons of admissibility, credibility or reliability? How on earth does the defence of necessity have any bearing on the decision to discontinue proceedings?

The Solicitor-General

The defence of necessity has to be looked at in respect of the evidence in any particular case. I am afraid that I cannot add to what I have repeatedly said: when counsel reviewed the case—that happens on an ongoing basis—his view was that there was no longer sufficient evidence.

Hugh Robertson (Faversham and Mid-Kent) (Con)

Does the Solicitor-General accept that the Government's inability to prosecute a civil servant who leaked state secrets to the press—particularly given that she worked at GCHQ—will send a shiver down the spine of every man and woman who works for our intelligence services? What steps are the Government going to take to ensure that, in their review of the Official Secrets Act, the security of those people is paramount?

The Solicitor-General

The issues that the hon. Gentleman raises are ones for reflection on the part of the Home Secretary and the Foreign Secretary. He speaks of the Government's inability to prosecute, and without labouring the point I should perhaps remind him that it is not the Government who prosecute under the Official Secrets Act; it is the prosecution service, and that is indeed what happened in this case. The Official Secrets Act has a long history, which I shall not go into.