My Lords, I am grateful to my noble and learned friend Lord Falconer and to the noble Baronesses, Lady D’Souza and Lady Jones, from whom we have just heard, for tabling these amendments. They have cemented in my mind concerns that I expressed at Second Reading about the role of the Attorney-General as the third lock in the architecture of this Bill.
In response to comments made by the noble and gallant Lord, Lord Stirrup, about how, if it is such a problem, we have a problem with the role of the Attorney-General in the constitution per se, I would say not quite. We know that the Attorney-General wears different hats—sometimes legal adviser to the Government and sometimes to Parliament—and sometimes acts in a separate role in relation to the public interest. Those hats are capable of being worn at different times. No doubt it takes a bit of skill to get the balance right, but in normal, civilian prosecutions, I suggest that an Attorney-General is very unlikely to have been giving legal advice on, for example, the investigative process; they would be very unlikely to have given advice directly to the police on the search that gave rise to the prosecution.
This is not the case in war and conflict, where the Attorney-General, as legal adviser to the Government, has undoubtedly been involved in the rules of engagement; they have quite possibly given very detailed advice on those rules and, as my noble and learned friend said, on matters concerning detention and so on. To make potentially the same person who advised on the legality of an operation the third lock on whether alleged criminality should be prosecuted seems to me unlikely to give confidence—the word “reassurance” has been used a lot—to anybody, whether that be civilian members of the public or military personnel. After all, this could be an Attorney-General who advised on the operation or one from a party that was very much opposed to the operation before it came into government. I have real concerns about the politicising of these prosecutions. One has only to think about the controversies in recent conflicts around the world to see that potential damage to public confidence, including among members of the Armed Forces on the front line and their families.
If the noble Lord, Lord Faulks, will forgive me a quick word, there was a little having of cake and eating it in his remarks. He referred—I do not think as
a criticism—to the ICC as quasi-political. Given these various hats, someone might well say that of the senior law officer involved in these matters who sits in or comes to Cabinet, including war Cabinets. In terms of accountability, to give this role to the Attorney-General is to give it to a political person who is appointed directly by the Prime Minister—quite possibly, as I say, the Prime Minister who authorised an operation—and for that all to be in the shadows. The Attorney-General’s original advice on the legality of the conflict and perhaps specific operations is currently in the shadows and now the Attorney-General’s veto of the independent prosecutor’s decision will quite possibly be in the shadows as well. That is highly problematic.
I am grateful for these amendments, which I think are probing. In any event, I think the Attorney-General should not be involved in this way at all. It seriously risks politicising already very delicate matters.