Lord Garnier (Con)

My Lords, I thank the noble Lord, Lord Beith, for initiating this debate and the Constitution Committee for its thought-provoking report. It is also a great pleasure to follow the noble and learned Lord, Lord Neuberger, as well as the other noble Lords who have contributed so far to this debate. There is much thought in what they have said, and I hope that others will have a chance to read it. In the time available to me, I want to touch on one of the subjects the report deals with, the role of the law officers. I was Solicitor-General in the early part of the Cameron coalition, and I was shadow Attorney-General under his leadership in the year before the 2010 general election. Before that, I was also shadow Attorney-General under the leadership of my noble friend Lord Hague of Richmond. The committee said that the law officers were “the definitive source of advice on legality for the Prime Minister”, and therefore had a significant constitutional role. It reiterated the recommendations it had made in an earlier report on the law officers that the Attorney-General must “place their duty to the rule of law above party political considerations”. I agree. Giving evidence on 6 July 2022 to the committee in that earlier inquiry on the role of the law officers, I referred to the experience of the late Peter Rawlinson, Lord Rawlinson, a former law officer under the Governments of Macmillan, Douglas-Home and Heath. As I told the committee, he explained in his autobiography that: “When he was appointed Solicitor-General after the night of the long knives in 1962, he was given a half-hour seminar by Harold Macmillan about the role and history of the law officers. Macmillan told him that his first priority was to uphold the rule of law, his second was to be responsible and accountable to Parliament, and his third—very much his third—duty and loyalty was to Macmillan’s Administration”. My noble friend Lord Cameron appointed me in a three-minute telephone call, but I expect he had rather more important things to get on with. I suspect there are no more misunderstood posts in government than those occupied by the Attorney-General and Solicitor-General. Being a law officer is not like being a political Minister in other departments. If, for example, you are the Secretary of State for Health, you have an intensely political and economic role. Every minute of your day is concerned with designing and implementing policy and working out how to pay for it. Then you tell everyone else how well you have done it. The law officer’s department is not traditionally a policy-making department; it is largely reactive. It only rarely introduces legislation. I used to describe our role as being like the lawyer in the cupboard. The Prime Minister or Secretary of State for a Whitehall department opens the cupboard and says, “What’s the answer to this problem?”. You tell them the answer, then they put you back in the cupboard and shut the door. Occasionally they might say thank you, but that was not guaranteed. I have also described the law officers as submarines. Submarines are most effective when unseen, unheard and operating without drawing attention to themselves. I came up with this rather laboured naval metaphor in October 2010 when HMS “Astute”, then a new submarine conducting sea trials, had just run aground off the Isle of Skye. If a law officer surfaces or runs aground, either the Government are in trouble or he is in trouble—or sometimes both. The knowledge that they are patrolling somewhere in the depths of Whitehall and Westminster ought to be sufficient to persuade Government Ministers to behave by the rule of law, and to comply with the Ministerial Code and the other rules and conventions that govern government behaviour. As the late Lord Mayhew said, the Attorney-General “has a duty to ensure that the Queen’s ministers, who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principal requirement of which is that the Government itself … acts lawfully”. It will not be forgotten that when he was Solicitor-General, he threatened to ask the police to raid No. 10 to find out who had unlawfully leaked his confidential opinion on the Westland affair. I was grateful to the noble Viscount, Lord Stansgate, for referring to the noble Lord, Lord Hennessy, because I am very fond of his “good chaps” principle. Call it something else if you like, but good government requires leadership, example from the top and mutual trust and understanding. The law officers cannot work or advise in isolation. They cannot just talk to themselves. It is essential that they are seen to be part of the government team, albeit a semi-detached part of that team. They should not ignore what their duties are, and nor should other members of the Government take them for granted. One of the things I have worried about over the last several years is that the fellowship of lawyers and Members of Parliament, between the judiciary and government, and between the judiciary and Parliament, has gone. We no longer speak the same language. When I took a Lord Chancellor to dinner in my inn, she appeared to feel that she was going into a foreign country, whereas not so very long ago the Lord Chancellor would not only have known most of the people there but would have appointed many of the judges in that room. There would have been a shared constitutional understanding about their separate roles, about the role of Parliament, the role of the Executive and the role of lawyers and the judiciary, and the Lord Chancellor would have defended the judges against the press and Parliament had any of them been attacked as enemies of the people. That has gone. It is a great pity, and it discourages practising members of the Bar and solicitors from coming into Parliament. Why give up a good practice? Why swap all that for the public obloquy that goes with being a Member of Parliament in an era of social media? I know plenty of people younger and much younger than me who would have made excellent Members of Parliament, excellent Ministers and, more particularly, excellent law officers, but they will not come anywhere near Parliament because, to them, it is poison. I am not the first to resort to the metaphor of the sea when referring to the law officers. David Mallet’s The Life of Francis Bacon portrays the offices of Attorney-General and Solicitor-General as “rocks upon which many aspiring lawyers have made shipwreck of their virtue and human nature”. Sadly, we have, in the relatively recent past, had law officers who strayed way outside their remit or gave questionable legal advice. They were not the first, and perhaps they will not be the last to do so, but I hope that properly informed public opinion, and thus government and Parliament, will continue to see the benefit of the current system with our law officers being Members of your Lordships’ House or the other place. As an institution, we need to encourage many more really good lawyers, from all political parties and none, to play an active role in politics, but for them also not to lose sight of their legal roots and heritage. We see a number of them in the Chamber most days of the week, but we need—they are not among us today, but I apologise if I cause them embarrassment —more young Wolfsons, Faulkses, Andersons, Pannicks and Banners. I could name others, but it is their younger equivalents who we need to get into the Commons. The other place no longer attracts such people, and our constitution is less well served as a consequence, because that fellowship of which I spoke has largely vanished.