§ 3.1 p.m.
§ The Solicitor-General (Lord Falconer of Thoroton)
My Lords, I beg to move that this Bill be now read a second time.
For me, this is a momentous and nerve-racking day. It is my maiden speech in the House of Lords. It is my first speech as Solicitor-General and it is my first speech in full-time politics. I am proud to sit in the House of Lords. I am proud to hold the honourable and historic office of Solicitor-General for England and Wales; and I am especially proud to be a member of this reforming Labour Government
When I left private practice at the Bar suddenly on Monday 5th May to take up my present role, I was relieved at least in one respect: that I would no longer face on a regular basis the risk of judicial destruction of what I had said. So often, that which looked watertight in chambers proved easily prone to well aimed judicial torpedo.
As I took my seat in the House on 15th May 1997 there, to my horror, dotted around the Chamber—sitting in some cases on the steps and aisles—were all the usual judicial suspects willing me on with what appeared to be a genuine warmth. Whether the warmth was the anticipation of the burning flesh as they hold my feet and my logic to the fire, only time will tell. I thought, on that day, you can run, but you just cannot hide.
I have, since my abrupt arrival in this House, been welcomed with immense kindness by my follow Peers. Perhaps I may mention three only. First, the noble and learned Lord, Lord Simon of Glaisdale, who, on the day I was introduced into the House, personally congratulated me and told me that the job of Solicitor-General was one of the best in government.
1075 For those who are aware of his contribution to the law, first as President of the Probate, Divorce and Admiralty Division and then as a Law Lord, those were encouraging words indeed.
Secondly, the noble Lord, Lord Rodgers of Quarry Bank, said in the Chamber that he was not sure what the Solicitor-General did, but he was sure that it was better that he did it from this place rather than another place. I was not present when he made that speech, but subsequently he repeated it to me with a great deal of warmth (not the whole speech; simply the part dealing with the role of the Solicitor-General).
Thirdly, there is my noble friend Lord Callaghan of Cardiff, whose judgment I have in recent days particularly come to respect. He congratulated me when he met me for the first time in the House. He particularly complimented me on the photograph of my family in the newspaper. He referred to a lady, who was in fact my wife, and said how very nice the lady standing with her legs crossed holding the child looked. He said that he assumed this was the nanny. I felt this was a compliment both to my wife and myself.
The Bill to which I ask your Lordships to give a Second Reading is not the stuff of political controversy. It seeks simply to remove a difficulty which exists in the running of the Law Officers' department, primarily in respect of the work of a non-political role which the Law Officers perform. In a nutshell, every time the Attorney-General wishes to delegate a particular piece of such work to the Solicitor-General he has formally to authorise the Solicitor to perform it. This means that the papers have to be presented to the Attorney for the delegation to be made.
The Bill, if passed, would permit the Attorney and the Solicitor to agree a general division of labour between them and then the work can be distributed without the need for further formality.
The two Law Officers for England and Wales—the Attorney-General and the Solicitor-General—are politicians, and members of the Government. They are the chief legal advisers for the Executive, and their prime advocates. They also perform a wide range of duties in the public interest in which they are independent of government and to which the doctrine of collective responsibility does not apply.
My right honourable friend in another place is an experienced and heavyweight politician who has held Front Bench office, including Cabinet Office, in all the years that Labour have been in power since 1964. He is a man whom I know from my own experience to be of immense political and legal judgment. Moreover, he is a man who has, from the time I was thrust beneath him, shown to my family and me a degree of tolerance, support and kindness, which was way beyond the call of duty and for which we are immensely grateful. I believe the Labour Government and the nation is lucky that there is such a man as Attorney-General.
In centuries gone by the Law Officers have not performed their role of government advocate with the degree of objectivity and balance which would now be expected of them. In 1730, a leading commentator,
1076 Mallit, said that some of the people who had held the office of Solicitor and Attorney-General acted at the Bar as if they thought themselves,absolved from all the obligations of truth. honour and decency".Even in the eighteenth century anti-lawyer jokes appeared to be fashionable. Whilst Mallit names no names, he might well have had in mind Sir Edward Coke who, at the trial of Sir Walter Raleigh, described Raleigh as "a monster", and went on:Thou are the most vile and execrable traitor that ever lived … I will now make it appear that there never lived a viler viper upon the face of the earth than thou".That was no doubt part of Sir Edward's non-controversial opening statement.
Or he may have had in mind Richard Rich who, as Solicitor-General, assisted in the prosecution of Sir Thomas More. When there appeared to be a gap in the evidence necessary to convict, the ever-amenable Rich simply went into the witness box and gave the necessary (perjured) evidence himself. At the end of his trial, as described by Robert Bolt in "A Man for all Seasons", More sees around Rich's neck the chain of office of the Attorney-General of Wales, and says:For Wales? Why, Richard, it profits a man nothing to give his soul for the whole world … But for Wales!".The more recent roll of Law Officers, some of whom are in this Chamber this afternoon, has I think completely removed the blot on the reputation of the Law Officers. The Law Officers' public interest functions are wide-ranging and important. Some have arisen by operation of law, such as the Attorney-General's role in representing the interest of charity in the courts; or his role in bringing proceedings to vindicate the rights of the public in court; or his right to enter a nolle prosequi in criminal proceedings thereby halting the proceedings.
Others of his public interest functions come from statute; for example, the Attorney's right to apply to make people vexatious litigants; or his right to refer unduly lenient sentences to the Court of Appeal. With a very few exceptions the performance of these functions is personal to the Attorney-General.
The problem of the personal nature of many of the functions of the Attorney-General is one that Parliament has, on a number of occasions in the past 350 years, sought to address. In 1644 the Long Parliament could not find an Attorney-General. This was hardly surprising since they had impeached the last one and left him languishing in the Fleet prison—no doubt something of a disincentive to his successor. So they passed an ordinance saying the warrants of the Solicitor-General should be treated as if they were those of the Attorney. That was only a temporary measure, which was repealed when a new Attorney was eventually found. The problem was then left in abeyance for 300 years.
In 1943 during the war the then Attorney, Sir Donald Somervell, went to the USA for a prolonged period (some months) to participate in the drafting documents of the United Nations. he left the Law Officers' department in the hands of the then Solicitor-General,
1077 Sir David Maxwell Fyfe, who went on subsequently to be one of the leading lights in the drafting of the European Convention on Human Rights.
When he returned from the USA Sir Donald sought to remedy some of the problems his absence had caused by introducing and procuring the passage of the Law Officers Act 1944. This permitted the Solicitor-General to perform the statutory functions of the Attorney-General when the office of the Attorney-General was vacant, when the Attorney-General was away or ill and where the Attorney-General had authorised the Solicitor-General to act in a particular case.
That is where the law presently stands. It has significant practical and legal shortcomings. First, it requires the specific delegation in every case as I have described above. Secondly, it does not resolve whether, where the Attorney is available, he can nevertheless delegate his non-statutory functions to the Solicitor.
The position in the Law Officers' department is, therefore, unlike any other Ministry where work of the appropriate level can be assigned to the junior minister without the need for the intervention of the Secretary of State or leading minister, and without the fear, save in the exceptional case, that it could be said the junior minister did not have the authority to undertake the function.
The Bill, for which I am seeking a Second Reading, addresses the problems I have described in a short and straightforward way. Clause 1 permits the Solicitor to perform all the functions of the Attorney for England and Wales. This obviates the need for the specific delegation. It covers the position of vacancy or illness or unavailability on the part of the Attorney, and it removes the doubt about the extent which the Attorney can delegate his non-statutory functions.
Clause 2 does the same in respect of Northern Ireland. Since 1973 the Attorney-General for England and Wales has been ex officio the Attorney for Northern Ireland, by virtue of the Northern Ireland Constitution Act.
Clause 3 is the short Title and repeals section, which repeals the 1944 Act in so far as it relates to the English Law Officers.
The Bill will permit my right honourable and learned friend in another place who is in charge of the department and his successors to run the department in a sensible and efficient manner, using the Solicitor-General to the full, without the need for specific delegation. I beg to move that the Bill be read a second time.
Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)
§ 3.11 p.m.
§ Lord Rawlinson of Ewell
My Lords, it is a pleasure as well as a duty to congratulate the noble and learned Lord, Lord Falconer of Thoroton, on his delightful maiden speech. Not only did he describe the Bill with great clarity, he also regaled the House with some historical anecdotes. The only time that I thought I saw 1078 the noble Lord, Lord Cledwyn of Penrhos, flinch was when the noble and learned Lord gave his anecdote about Wales.
Lord Birkenhead (F. E. Smith), the predecessor of the noble and learned Lord, said:All that is left in the House of Commons for the Solicitor-General in normal circumstances is the elucidation of unintelligible legal difficulties in minor and uninteresting bills".That will not be the fate of the present Solicitor-General in this House, whose important addition to the debating prowess of the Government will be immediately welcomed by them, just as his agreeable speeches will be welcomed by this side of the House.
I have two things in common with the noble and learned Lord. First, I too made my maiden speech in this House from the Dispatch Box, but that was 19 years ago and was from this side of the House when we were in opposition, as we are once again. Secondly, I held the same office, but that was 35 years ago—a time when it was unthinkable for an English Law Officer to be a Member of this House.
It was 1962 and I was summoned to Admiralty House because Downing Street was then, in the immortal words of the American Ambassador to the Court of St. James, undergoing "refurbishment". The Prime Minister was Mr. Harold Macmillan. He waved me to a seat and made a lengthy and elegant survey of the salaried officials who had been Members of Parliament. He dwelt a great deal on Samuel Pepys in the 17th century and said that the Law Officers were the last of the breed. Most importantly, he said to me, "Your obligations as a Law Officer are first to the Crown, secondly to Parliament and only thirdly to my Administration". Then came a courteous inquiry, which was quite unnecessary, as to whether I would do him the honour of joining his Administration. I am afraid that I rather spoilt it in my eagerness to say yes by asking him to delay it while I mitigated in the Central Criminal Court on behalf of a former colleague who had pleaded guilty to gross indecency with young males, at which the Prime Minister inquired why the gentleman had not fled abroad as had old Willy Beauchamp so many years earlier. I am afraid that I could make no adequate reply.
Those were sound instructions about the duties of a Law Officer, especially in those days when a principal duty of a Law Officer was to appear in cases in which the Crown had a major interest which, for the Solicitor-General, was the Revenue List, into the horrors of which we were introduced by the doyen of Treasury counsel, Reggie Hills, who had coached generations of Solicitors-General before. I do not anticipate that the noble and learned Lord will have such horrors inflicted upon him.
Later, when I was invited to become a Law Officer a second time, the style was very different from the elegant style of 32 years previously. It took the form of a gruff and laconic telephone call, appropriate for the person issuing the invitation. By then, eight years later, I had discovered that Harold Macmillan's ideas about the duties of a Law Officer were not at all acceptable to Whitehall which believed that the Attorney-General's first duty was to be on hand, to attend and to advise
1079 Cabinet, and not to wander about appearing in court, here or abroad. It has always been the desire of Whitehall that Law Officers should be tame, in-house lawyers at the beck and call of government. Whitehall has always wanted to remove them—and accomplished it in the end—from the law courts where their chambers used to be situated and to bring them nearer to Whitehall and Westminster. Perhaps I should add that I managed to resist that since I feared that removal from the law courts would loosen the Law Officers' links with the courts and their semi-judicial duties and would translate them into mere political Ministers with legal qualifications. In those days—25 years ago—despite Whitehall, I was able to insist on appearing regularly in court—in the appellate courts, in Strasbourg and at the Hague, and to prosecute on each circuit, save the Welsh circuit. As I had succeeded my dear friend Sir Elwyn Jones I would not have dared to prosecute on that distinguished circuit, among its distinguished practitioners.
In the past 25 years, the role of the Law Officers has greatly changed. Their appearances in court have significantly declined. That may be partly due to the European business which is now inflicted upon them, but principally their traditional role has changed because another place has increasingly ceased to be an assembly where Members with different experiences and different expertise in finance, industry, agriculture, the law or medicine can contribute their experience to debates. Such Members have been replaced by professional politicians who are without real experience of trade or the professions. Sir Gordon Downey appears to be doubting whether Members of another place should even be permitted to have any outside interests whatsoever. In the future, therefore, there is little chance of a successful barrister seeking election to another place. In my day, "real barristers"—that is, practising barristers; not those simply with qualifications who have been called to the Bar—were encouraged and accommodated as Members of another place by being excused morning committees by the Whips, provided that they were in the House by 4.30 p.m.—that is, after the courts had risen. How can a government in future expect to find banister Members who are capable of serving as Law Officers? They will not be able to do so.
Therefore, while I welcome the noble and learned Lord to this House—he has substantial practical experience in the courts—there remains a problem for the other place which used to receive expert legal advice from Law Officers, knowing that they enjoyed a substantial practice in the courts. If the Attorney-General does not appear regularly in the courts, I do not see how he can remain head of the Bar. I hope that I shall not be the last ex-Attorney-General to be elected chairman of the Bar, but I regret that I do not believe that the traditional role, whereby Law Officers were frequently in the courts and appearing in cases in which the Crown was seriously interested, either prosecuting or being involved in fiscal or other matters, can be preserved. Indeed, as I expressed on the Courts and Legal Services Bill, the judicial role of the Lord Chancellor has been threatened by his becoming the head of a vast spending and administrative 1080 department. He thus becomes less the judge and more the political Minister. Inevitably, I fear that the time is coming for the establishment of a ministry of justice.
As far as concerns the role of the Lord Chancellor, perhaps I may give the noble and learned Lord a rather sly warning. The Law Officers are the constitutional advisers on law to the Cabinet, of which the Lord Chancellor is a member. When the Law Officers give advice the question has been researched not only by themselves but by lawyers in their departments, lawyers in the department concerned and also Treasury counsel—the leading practitioners in the field of law under review. Such is their calibre that in my time I can cite, for instance, the following Treasury counsel: the noble and learned Lords, Lord Bridge, Lord Slynn and Lord Woolf, and Lord Justice Peter Gibson in Chancery matters. Such is the calibre of lawyers who contribute to a Law Officer's opinion. I warn the Solicitor-General, half in jest but half seriously, to beware of "top-of-the-head" advice. It is not unknown for such advice to be given in Cabinet to government by otherwise friendly Lord Chancellors. Beware!
In conclusion, I welcome the Bill. However, I foresee the demise of the traditional system. I am saddened that the changes in another place over the past quarter of a century have effectively driven from its ranks those who were known as the gentlemen of the long robe and who over the centuries have long adorned the lower House of Parliament.
§ 3.21 p.m.
§ Lord Lester of Herne Hill
My Lords, this debate gives me the opportunity to express my personal pleasure at the appointment of the noble and learned Lord, Lord Falconer of Thoroton, as Solicitor-General, to congratulate him and to wish him happiness and fulfilment in his new career in public office. He has had a very successful career at the Bar where he is popular and universally admired for his warmth, wit, high intelligence and forensic ability. He will, I am sure, be a source of strength to the Government and to Parliament. I pay tribute to the Prime Minister and to the noble and learned Lord the Lord Chancellor for this imaginative and well merited appointment.
There is nothing unprecedented about a Law Officer being a Member of this House rather than of another place. There have been times when Law Officers have been outside Parliament altogether: Sir William Jowitt. as Attorney-General, was without a seat in 1931; Sir Henry Slesser, as Solicitor-General, was without a seat in 1924; the Solicitor-General for Scotland is not invariably a member of another place; and the Lord Advocate is now a Member of this House, which perhaps reflects the decline in the number of able advocates in the other place.
The present Bill makes a small but important change by empowering the Solicitor-General to discharge the functions of the Attorney-General free of the existing unnecessary constraints. Traditionally, the Solicitor-General has been the general deputy of the Attorney-General and subordinate to him. In effect the 1081 present Bill establishes the Solicitor-General as a Law Officer with potentially co-ordinate powers and duties to those of the Attorney-General.
I hope that this will be only a first step in a programme of much needed reform of the government legal services. I am very glad that the noble and learned Lord the Lord Chancellor has already expressed an intention to create a judicial services commission for the appointment of judges, a proposal long advocated by my party. The importance of that proposal is twofold: first, properly constructed—by which I mean with a mainly judicial membership—a judicial services commission will protect the independence and high quality of the judiciary. Secondly, the creation of such a bulwark and safeguard will make it possible to move towards the creation of a more powerful department of justice, unifying responsibility for the criminal and the civil law together with public law in a single department and giving a very high priority to constitutional and law reform. It is surely anomalous that responsibility for criminal law reform is still a matter for the Home Secretary while responsibility for civil law reform is a matter for the Lord Chancellor.
I respectfully agree with the view expressed by the noble and learned Lord, Lord Steyn, in his recent lecture to the Administrative Law Bar Association, that it would also be desirable for the Lord Chancellor to cease to be the head of the judiciary in England and Wales while retaining all his other functions about appointments, law reform, statute law revision, legal administration and as constitutional adviser to the Government. As the noble and learned Lord observed,Under governments of all complexions the Lord Chancellor is always a spokesman for the government in furtherance of its party political agenda. Even in respect of matters affecting the administration of justice he is … always subject to collective cabinet responsibility. The Lord Chancellor as a cabinet member represents the voice of reform guided by the Treasury perspective. The view of the judges is rather different. They do not wholeheartedly share the modern adoration of the deity of the economy. On the whole they put justice first. That view can in our system he best put forward by the Lord Chief Justice. He should he the head of the judiciary in England and Wales.Like the noble and learned Lord, Lord Steyn, I believe that the proposition that a Cabinet Minister must be the head of our judiciary in England is no longer sustainable on constitutional or pragmatic grounds.
What then of the constitutional role of the Law Officers? The office of Attorney-General is highly political. Although he is not normally in the Cabinet he is a member of the Government. Together with the Solicitor-General, the Lord Advocate and Solicitor-General for Scotland, he is a member of the Administration and one of the Crown's principal advisers on points of law. He represents the Crown in all matters in which rights of a public character come into question. He is entitled to take civil proceedings to enforce the law, including contempt proceedings against the media. He may be instructed to prosecute in important criminal cases and his consent is required before some criminal proceedings can be undertaken. He has the power to enter a nolle prosequi on any 1082 indictment. The Director of Public Prosecutions is responsible to him and he is in turn accountable to Parliament.
The Attorney-General's power to take civil proceedings to enforce the law and his control over criminal prosecutions is quasi-judicial, but he is also a political figure responsive to political pressures. By convention, in his quasi-judicial function the Attorney-General is not subject to collective responsibility and he does not take orders from the Government. But he may seek the views of other Ministers and they may volunteer their views. He must weigh issues of public interest and public policy, but he is not meant to be influenced by party political considerations.
As the noble and learned Lord, Lord Steyn, has pointed out, these conventions are weak and their
efficacy depends on Chinese walls in the mind of the Attorney General".He gives the examples of the decision taken by a distinguished Attorney-General, Sir Michael Havers, to bring proceedings to prevent the publication of Spycatcher, observing that there was nothing very quasi-judicial about that decision.
In his Hamlyn lectures in 1990 the noble and learned Lord, Lord Woolf, examined the Attorney-General's function in bringing civil proceedings to protect the public interest. The Master of the Rolls said that in controversial cases involving the Government it seemed virtually impossible for the public or the media to identify when the Attorney-General was wearing his guardian of the public interest hat rather than his governmental hat. The noble and learned Lord, Lord Woolf, concluded that it was not apt any longer for the Attorney-General to perform this important function. He called for the appointment of an independent director of civil proceedings, and I tend to agree with him.
The noble and learned Lord, Lord Steyn, has argued cogently that the same reasoning based on considerations of public confidence applies to the Attorney-General's power over criminal prosecutions. He asks,How can there be public confidence in a decision by the Attorney-General to prosecute or not to prosecute in a politically sensitive case? How can the public have confidence that the Attorney General is able to keep his political and public interest responsibilities in separate mental compartments? The present position is entirely inconsistent with constitutional principle. Nothing will be lost if the office of Attorney General is removed from the political arena, as an independent office outside government.That is a model adopted under the Irish constitution and the constitutions of many Commonwealth countries. The Attorney-General in those countries is not a government servant, but an independent officer with quasi-judicial and executive functions. There is much to commend it. There is an alternative to the independent status advocated by the noble and learned Lord, Lord Steyn, and others, which would be to relieve the Attorney-General of his functions in respect of criminal prosecutions and to take civil proceedings to enforce the law by entrusting those powers to independent public
1083 officers—the Director of Public Prosecutions and a director of civil proceedings, who could be made accountable to Parliament through the appropriate Select Committee.
In his review of Government Legal Services, in 1989, the distinguished public servant Sir Robert Andrew wrote that he had been struck by two features of the present organisation.On the one hand, the Law Officers do not really have a Department—only a Legal Secretariat … If the Attorney-General, assisted by the Solicitor-General, is to perform the important and onerous task of acting as Legal Adviser to the Government on a wide range of increasingly complex issues … he needs more substantial support. On the other hand, the Treasury Solicitor's Department is a department without a ministerial head in the usual sense. It would be helpful to the Treasury Solicitor to have a Minister in day-to-day charge of the Department. This would give him a ministerial voice and ensure that he saw copies of ministerial correspondence … thus facilitating an early legal input on policy issues. It would give him additional 'clout', for example in disputes over resources.I believe that Sir Robert Andrew was right in recommending that the two departments should be merged to form a single Law Officers' department presided over by the Attorney-General. The Treasury Solicitor would retain his historic title and duties but would become the Permanent Secretary of the new department, and would be the Law Officers' principal adviser as well as supervising the department.
I agree also with Sir Robert Andrew that there would be advantage in bringing Parliamentary Counsel's Office within the new Law Officers' department. Giving the Attorney-General a more direct responsibility for Parliamentary Counsel's Office would not alter the position of the Lord President, nor the relationship between individual drafters and the Ministers for whom they prepare Bills. It would not mean that the Attorney-General became an extra link in the drafting process, but it would help to meet the criticism that there is no one to whom Ministers can turn if they are dissatisfied with the way in which the drafting of a Bill is being handled. I well remember that problem, when I had the privilege of acting as special adviser to my noble friend Lord Jenkins of Hillhead at the Home Office in the mid-1970s. Both the Home Secretary and the Attorney-General were greatly dissatisfied with the way in which a Bill's drafting was being handled, but they were helpless to do anything effective to resolve the problem.
I hope that each of those suggestions will be carefully considered at an early stage in the lifetime of this Government, and that the noble and learned Lord the Solicitor-General, whose powers and influence will be greatly enhanced by this little Bill, working with the Lord Chancellor and the Attorney-General, will be a midwife for further reforms.
§ 3.34 p.m.
§ Lord Simon of Glaisdale
My Lords, the noble and learned Lord, Lord Rawlinson, paid a felicitous and well deserved tribute to the admirable maiden and ministerial speech of the noble and learned Lord the Solicitor-General. I exceptionally wish to associate myself with that, partly on personal grounds and partly 1084 because it is a valuable parliamentary development that an English Law Officer should be a Member of your Lordships' House.
I do not know whether there is still, in the library of the Law Officers' department, an old hook, now superseded, by Norton-Kyshe, on the Law Officers of the Crown. If the noble and learned Lord the Solicitor-General has not come across it, I recommend the first three pages to him. In that he describes, first, how horrible is the existence of the Attorney-General: everything he does will be execrated; on the other hand, he says that the job of Solicitor-General is the happiest in the Government. I hope that that will encourage the noble and learned Lord.
Your Lordships will remember that when Disraeli became a Member of your Lordships' House one of his colleagues asked him how he was getting on, and he said,Dead, dead, but in the Elysian Fields".The noble and learned Lord will not merely be occupying the most felicitous post in the Government, but he will be grazing, in that respect, in the Elysian Fields, and we are glad that it should be so.
I mentioned the value of an English Law Officer being a Member of your Lordships' House. In a sense, that is partly a reversion to history. Until about 1600 both Law Officers, but particularly the Solicitor-General, had the duty of advising your Lordships' House. The Attorney-General's duties, oddly enough, consisted, among other things, of carrying messages between the two Houses, but the Solicitor-General was particularly the adviser of your Lordships' House. When he was elevated to Attorney-General, difficulties sometimes arose. They were mainly personal.
The main difficulty arose when Francis Bacon, a Member of the other place, was made Attorney-General. He was already by that time intensely distrusted, partly because of his obvious ambition, by his parliamentary colleagues. They resolved at first that no Attorney-General should be a Member of the other place. They relented slightly after that and resolved that Mr. Attorney Bacon should remain a Member, but that in future no Attorney-General should be a Member of the other place. Remarkably, that was observed for about three-quarters of a century, but since the Restoration the Attorney-General has been welcomed as a Member of the other place, the difference again, I think, being largely a matter of character.
Sir Henry Finch, afterwards the great Earl of Nottingham, was a man of outstanding integrity and was implicitly trusted by the other place to carry out his duties impartially and not merely as a servant of the Crown. That brings me to why it is valuable to have an English Law Officer among your Lordships. The law officers, as the noble and learned Lord, Lord Rawlinson, explained, have their primary function as legal advisers and representatives of the Government. But they also have a duty to Parliament. Parliament looks to them to explain with impartiality difficult points of law. I remember Mr. Attorney Manningham-Buller explaining to a mystified House of Commons the 1085 Byzantine differences between malice aforethought, constructive malice and implied malice. The House readily accepted his advice, even if it did not fully understand it. Indeed, we look to the Law Officers not only to represent the Government but also to advise your Lordships with integrity and impartiality.
For those reasons, I greatly welcome the noble and learned Lord the Attorney-General. For some time, we have had the Lord Advocate as a Member to our advantage. Indeed, he has gone far beyond the bounds of Scottish business in assisting your Lordships. I do not know what will happen to him if we have a Scottish Parliament. One of the many ideas that has been successively floated is that there should be a Cabinet in the Scottish Parliament and that the Scottish law officers should be heard and advise there but not be Members. How that places the Lord Advocate in regard to your Lordships' House I do not know. Perhaps he will be a noble embodiment of the West Lothian question. If we are to miss him we will all the more value the presence of the noble and learned Lord the Solicitor-General, who by his speech today has so much commended himself to your Lordships.
§ 3.42 p.m.
My Lords, your Lordships may be relieved to hear that I do not intend to follow the noble Lord, Lord Lester of Herne Hill, in his perpetual and restless desire to change almost everything seemingly for change's sake or merely because it is done differently in some remote country. I rise to express my delight at the appointment of my noble and learned friend Lord Falconer of Thoroton as Solicitor-General and as a Member of your Lordships' House. I have two reasons for doing so. The first is purely personal; the second is more general and relates to the functions of the Law Officers of England and Wales, if Wales will still have him after his earlier remarks.
Sitting on these Benches, I can have no general view as to the desirability or not of the recent change of government. However, that they have brought the noble and learned Lord. Lord Falconer, to the office of Solicitor-General and to this House is a great point in their favour. Not only is the noble and learned Lord a very able lawyer and advocate, but he is also an enormously interesting and interested person who will bring to this role a highly intelligent and original mind; a great felicity of expression; a high degree of charm and wit, as the House will already have witnessed; and a deep concern for what is fair and right. He will also bring to it a very delightful and charming wife who, as he assures us, is not his nanny. Your Lordships might have thought from that that he is an ideal adornment for the Front Bench, but one must perhaps accept his lack of sartorial elegance.
I have only two qualifications to my unadulterated delight at his appointment. The first is that our chambers are a much duller place without him; and the second is that I feel a deep sympathy for those in his office who, no doubt, have already encountered his unique ability to create instant and total chaos out of his room and out of 1086 every set of papers put before him. If they find that position wholly intolerable and would like to get in touch with me I shall be able to give them the name of probably the only person in the world who can deal with it.
On a more general point, I strongly echo what was said by the noble and learned Lord, Lord Rawlinson of Ewell. In the distant past. many of those elected to another place had already pursued successful careers in spheres outside politics. They came to Parliament bringing that wisdom and experience and they did not abandon that other activity. Now, such are the demands of the parties that almost everyone in another place is and always has been a full-time professional politician who has done and achieved little else. Of course, this is not the time and perhaps not even the place to debate the general desirability of that.
However, in few fields has that been more marked than in the law. There were times when much of the leading talent at the Bar was available for appointment as Law Officers. Names such as Carson. F.E. Smith, Sir John Simon, and so forth, come to mind. In more recent years. more notable exceptions have fulfilled the talents and abilities of the names I have mentioned. One has to think only of the noble and learned Lords, Lord Simon of Glaisdale and Lord Rawlinson of Ewell, to see what I mean.
But it will be accepted that it is no longer the case that there is available for choice as Law Officers in another place those who have and are pursuing successful careers at the Bar and who therefore are in touch with the full knowledge and nuances of an ever more complicated legal system. If our Law Officers are always to come from those elected to another place, it is therefore inevitable that they will lack the knowledge, experience and wisdom of someone in full-time practice.
That fact has led many, including myself, to doubt the continuing utility of the system and to wonder whether it would he better if each government appointed a panel of leading lawyers to advise them rather than relying on the Law Officers.
As regards Scotland, in recent years Law Officers have been appointed from lawyers rather than from Members of Parliament and have therefore had that wisdom. In the presence of the noble and learned Lord, Lord Ackner, one can hardly expect to gain the unanimous approval of this House for that step or for its consequences, but I believe that on the whole it will receive general approval. This is the first time that the step has been taken for England and Wales and I very much commend it. However many people may dislike lawyers as a breed, it is the function of government to propose and of Parliament to enact law. In doing so, it is surely necessary that they should have access to the best possible legal advice and cogent exposition of that advice.
I hardly expect the noble and learned Lord the Solicitor-General, with his natural modesty. to say in his closing speech how much he agrees with me; that his was an excellent appointment and innovation. However, I hope that my remarks and those of the noble and
1087 learned Lord, Lord Rawlinson, may be conveyed to others and that we will see this excellent precedent followed on future occasions.
§ 3.50 p.m.
§ Lord Meston
My Lords, I too congratulate the noble and learned Lord the Solicitor-General on his maiden speech. It is the latest of several from the Government Front Benches, from which position a maiden speaker probably does not have the same freedom of choice as a Back-Bencher in relation to either the occasion or the content of his first speech. That has not affected the noble and learned Lord who comes to the House, as we have heard, with a well-deserved reputation for his formidable intellect and advocacy.
The noble and learned Lord has introduced a Bill which will give him more work for no extra pay because, according to the Explanatory Memorandum, the Bill will have no effect on public expenditure. As your Lordships may be aware, there has been much cheerful speculation about just how big a financial sacrifice the noble and learned Lord made to take up his office. There have also been serious suggestions for a reconsideration of the level of remuneration to the Law Officers. Perhaps the argument for higher pay will be defeated so long as governments can recruit and retain eminent practitioners such as the noble and learned Lord, Lord Falconer.
Some people say also that the Law Officers should appear in court more often, as in the days when they often appeared in important criminal trials and tax cases. That is a point on which the noble and learned Lord, Lord Rawlinson, touched. It may be that the present Solicitor-General can make up for the dramatic impact on the Inland Revenue resulting from his own abandonment of practice by restoring his appearances for that organisation. However, I do not know whether there is any way in which the effect on the turnover of the chambers of the noble Viscount, Lord Bledisloe, can be remedied in quite the same way.
I should like to think also that this appointment sets a precedent for there to be one Law Officer for England and Wales in this House. Not only would that relieve the sometimes enormous parliamentary burden on the Lord Chancellor but it would also enable a Law Officer to participate directly in the work of this House as a revising Chamber, to the long term enhancement of the quality of our legislation. I hope also that the point made by my noble friend Lord Lester about an assumption of responsibility for the work of parliamentary counsel will be considered seriously.
The necessity for this Bill would surprise most lawyers who would have assumed—and would probably have been taught—that the Solicitor-General can exercise all the powers of the Attorney-General when the Attorney-General is not available. The late Lord Elwyn-Jones, in his memoirs, quoted the author of Forensic Fables who described the difference between the Attorney-General and the Solicitor-General as,Broadly speaking, the difference between a crocodile and an alligator".In present company, I am sure that that refers only to speed of movement when roused and to firmness of grip.
1088 In fact. the 1944 Act provides only for the exercise of statutory powers by the Solicitor-General in place of the Attorney. The reason for that limitation is not very clear from reading the debates on the 1944 Act. Then there was no debate about the constitutional position of the Law Officers. Nowadays, every first-year law student learns that the Law Officers' position exerts much theoretical and actual strain on the separation of powers. The Law Officers' ability to withstand that strain depends on the independence and integrity of the office holders and on their ability to separate the interests of the government of which they are a member and the interests of the wider community.
Unfortunately, the public probably no longer believes that a Law Officer can fully immunise himself from political pressures. Yet there must be public confidence in the total independence of those who make the sort of discretionary decisions which Law Officers must make; for example, decisions whether or not to prosecute the media for contempt of court or, in cases of incitement to racial hatred, where it has been suggested that there has been too much caution in prosecution and that that has had the effect of weakening the legislation.
As we have heard this afternoon, there have been many different proposals to detach the Law Officers from the political arena while retaining some measure of parliamentary accountability for which, as my noble friend said, there are models in other jurisdictions. These proposals have come not just from political parties but from distinguished academics and most recently from noble and learned Law Lords, in particular the noble and learned Lords, Lord Woolf and Lord Steyn.
We are embarking on a period of constitutional reform. I hope that it will include a real consideration of the functions and powers of Law Officers at the turn of the century. But perhaps I may end by reassuring the new Solicitor-General that this Bill will not be used by me at any rate as a vehicle by which to change his job description so early in his career.
§ 3.55 p.m.
§ Lord Kingsland
My Lords, in view of the politically anodyne content of this Bill, and the many excellent speeches that we have heard this afternoon in your Lordships' House both from noble and noble and learned Lords, almost the only thing that is left for me to do is to congratulate the noble and learned Lord the Solicitor-General most warmly on an entertaining and accomplished maiden speech. Listening to him, it is easy to understand how he has attained such great eminence in his career and at such a tender age.
I should like to think that, while in office, he will manage to maintain himself in court room condition. As I understand it, in the old days the Law Officers honed their forensic skills on prosecuting poisoners in the criminal court. Nowadays, as the noble and learned Lord, Lord Rawlinson, told us, the role of Law Officers is mainly that of what the Americans now call, I believe, "upstairs lawyers". They advise government departments on how best to behave and no doubt advise them on how to make their decisions immune from judicial review—usually with absolutely disastrous consequences.
1089 I believe that this move, which the noble and learned Lord, Lord Rawlinson, particularly addressed, is reflected in what I regard as the rather sad shift of the Law Officers from the law courts in the Strand to Buckingham Gate. That symbolises what has happened. However, it is true to say also that poisoning is not as fashionable as it used to be.
Your Lordships' House will agree, from the grasp that the noble and learned Lord showed of the historic background of his appointment, that he will be a great servant in that role. I wish him the very best of luck in it.
The noble and learned Lord quoted the noble Lord, Lord Rodgers of Quarry Bank, as saying what a jolly good thing it was that the Solicitor-General had come to your Lordships' House. I share that view. I was particularly struck by what the noble Viscount, Lord Bledisloe, said about the difficulty these days in combining a full and successful law practice in the courts with a full and successful political career in another place. That is something that has perhaps passed us by for ever. In those circumstances, and particularly with the kind of international travel that a modern Law Officer will have to undertake, appearing in international courts, including the European Court of Justice and the European Court of Human Rights, it may be a very good thing that he is not burdened with the heavy constituency duties which are now a daily part of the diet of Members of another place.
Also, it reflects a very interesting change in the direction of authority as between your Lordships' House and another place. The story of the 20th century has been a story of a gradual ebbing away of power from your Lordships' House to another place. Here is a happy example of a reversal of that flow. The power has now come back to your Lordships' House in the shape of the office of Solicitor-General. I rather take the view that, just because you have been elected, does not necessarily mean that you are a good thing. So, perhaps one day, we will see the position of Attorney-General also added to that of Solicitor-General in your Lordships' House.
The noble and learned Lord, Lord Simon of Glaisdale, said that he thought that the appointment of Solicitor-General was an excellent appointment to have in government. That was not the view of the first Labour Law Officer, Sir Patrick Hastings, who is said to be, by those who saw both men, the greatest advocate of the 20th century, next to Lord Carson. He hated the job of Law Officer. Indeed, he only held it for a few months. He called it, "the job out of Hell". He recommended that a certain prosecution take place but the Labour Cabinet reversed that recommendation. As a direct result, as I understand it, the first Labour Government fell.
I am not suggesting to the noble and learned Lord the Solicitor-General that that will be the consequence of the Bill that he has introduced today. On the contrary, I believe it to be an excellent Bill. I only wish that my own party had introduced it when it was in government, because it is clearly long overdue. By doing so, the noble and learned Lord has fulfilled that other requirement when making a maiden speech which is to introduce 1090 something uncontroversial. The noble and learned Lord has opened his innings in the finest style and I wish him the best of luck in the future.
§ 4.1 p.m.
§ Lord Falconer of Thoroton
My Lords, I am extremely grateful for the many kind words that have been addressed to me in the debate. For me, it has been a short but interesting debate. I am pleased and relieved that the Bill has been broadly welcomed.
I shall begin by dealing with the very helpful contributions which have been made this afternoon. I should like, first, to refer to the contribution made by the noble and learned Lord, Lord Rawlinson. I should tell him that, in my capacity as deputy to the Attorney-General, I was in Northern Ireland last week. While I was there, without making any comment on his predecessor and on the politics involved, a member of the Northern Ireland Bar said that one of the few benefits of the suspension of Stormont and what followed in the Northern Ireland Constitution Act was that Sir Peter Rawlinson (as he then was) became the Attorney-General for Northern Ireland. Plainly he is a man held in the greatest respect both here and in Northern Ireland.
In effect, the noble and learned Lord made three points. First, he said that he very much hoped that the Law Officers would continue with the tradition of appearing in court. We very much agree with that; but, of course, it is very much more difficult to appear in court on the regular basis that the Law Officers have done in the past. Moreover, there are certain kinds of litigation, such as revenue litigation, in which it might not be appropriate for them to get involved. However, both myself and my right honourable and learned friend in another place hope to appear in court, not just in poisoning cases—indeed, perhaps not even in poisoning cases—but certainly in criminal and civil cases of importance.
Secondly, the noble and learned Lord said that it was most unfortunate that there was no time now to be both a successful barrister and a Member of the Lower House. That does not apply to my right honourable and learned friend in another place who, after the Labour Government lost power in 1979, pursued an extremely successful career at the criminal Bar and now holds the office of Attorney-General. Thirdly, the noble and learned Lord warned me about, as he described it, the top-of-the-head advice from the Lord Chancellor. All of us would agree that the top-of-the-head advice from the present Lord Chancellor would be better than the bottom-of-the-head advice from most of us. However, I take on board the warning given to me.
I am grateful to the noble Lord, Lord Lester of Herne Hill, for his kind remarks and welcome. I am not sure that this is the appropriate debate in which to discuss the constitutional position either of the Lord Chancellor or of the Law Officers. However, I shall simply make three points in relation to what the noble Lord, Lord Lester, said. First, there are substantial benefits in having as a Law Officer a political big hitter—I do not mean myself, but my right honourable and learned friend in another
1091 place—because it is useful to have a substantial politician who is able to express legal advice. Secondly, as the noble Lord, Lord Kingsland, said, perhaps among the most distinguished barristers who has held the office of Law Officer this century was Sir Patrick Hastings. Whether through his own fault or otherwise, he ended up making a very substantial mess so far as concerns politics.
Thirdly, the noble Lord referred to statutory drafting. The position now is that if a Minister is dissatisfied with the drafting of a Bill, he is entitled to go to the Law Officers for their advice to ascertain whether or not the Bill as drafted reflects the policy of the ministry. If it does not, then it is for the Law Officers to raise the matter with the drafters of the Bill and to make sure that it gives effect to the policy. Therefore, one hopes that the problems that the noble Lord identified, especially in relation to the legislation to which he referred, would not now be encountered.
I am most grateful for the remarks made by the noble and learned Lord, Lord Simon of Glaisdale. I very much hope that I will be grazing in the Elysian Fields, as he suggests. I would regard it as immodest to suggest for one moment that the Solicitor-General could take over the role that has been performed with such distinction by the Lord Advocate in this House over many years. As for my noble friend Lord Bledisloe, I must say that I am deeply grateful for his kind personal remarks; indeed, I regard every one of them as being in breach of confidence. As regards his echoing the remarks made by the noble and learned Lord, Lord Rawlinson, I believe that I dealt with those points when responding earlier.
I am also grateful to the noble Lord, Lord Meston, for his kind remarks. I particularly noted his reference to the financial position of the Law Officers. Up until 1892, Law Officers could conduct their own private practices. However, Mr. Gladstone, the Prime Minister at the time, sought the advice of the Attorney-General on a particular occasion but he was too busy performing his private practice. He then reached for his very much second best, the Solicitor-General, but he, too, was performing private work. Therefore, they were banned ever afterwards from conducting private work. Their last hope was the fact that they used to be paid when they appeared in court on behalf of the Government but, thanks to the negotiating skills of Mr. Hartley Shawcross (as he then was), that right was negotiated away in return for a bigger salary. I imagine that there is no connection between that negotiation taking place and the fact that the appearances of the Law Officers in court have substantially declined since then.
I am extremely grateful to the noble Lord, Lord Kingsland, for the kind remarks that he made. Again, I believe I dealt with all the points that he raised in my earlier responses. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Committee of the Whole House.