Attorney-General’s Legal Advice

Debate between Baroness Chakrabarti and Earl Howe

Wednesday 25th September 2019 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am grateful to the Minister for repeating that Statement and for giving his noble and learned friend a well-deserved rest after his supreme efforts down the road. Will he join me in distancing this House, at least, from some of the intemperate, ill-advised remarks made by his colleagues in the other place—for example, that Parliament has no moral right to sit; that our judiciary should now become subject to political appointment; and that the highest court in these islands has somehow perpetrated a constitutional coup?

[Earl Howe]

My Lords, in the circumstances in which we find ourselves—which the Supreme Court itself characterised as a one-off—it is likely that phrases are used in the heat of the moment that are judged inappropriate in the cool light of day. I do not believe that the noble Baroness quoted my right honourable and learned friend quite correctly when she referred to a statement to the effect that Parliament has no moral right to sit. I think what he said was:

“This Parliament … has no moral right to sit”.


That was in the context of a debate on the other place’s inability to reach a conclusion on the outcome of Brexit, not about this particular matter.

I cannot comment on any suggestion that there should be a political process to appoint judges; that is well beyond my brief and I do not believe that it is under consideration at all. Even if it were, it would require lengthy and considered debate and judgment involving political parties of all complexions. It is not under serious consideration at the moment.

In these circumstances, we need to reflect on the judgment that the Supreme Court has reached. Instant comments on it are possible, of course. However, it has major constitutional and legal implications, as the noble Baroness will no doubt accept. It behoves us all to look at what was said and at how that impacts on our legal position as parliamentarians, but also for the Executive to reflect on how they should behave in the future regarding any future Prorogation.

Torture Overseas: Ministry of Defence Policy

Debate between Baroness Chakrabarti and Earl Howe

Monday 20th May 2019 Lords Chamber

[Baroness Chakrabarti (Lab)]

My Lords, I am incredibly grateful to the Minister for repeating that Statement. He does not need me to suggest that, in the febrile times in which we are living, it is important that all of us in this House and elsewhere respect fundamental human rights and the rule of law, which may bind us together in the times ahead.

This Urgent Question arose because of media reports that a 2018 document suggests that the MoD was giving guidance that torture might be acceptable if Ministers agreed that the potential benefits justified accepting the risk and the legal consequences that might follow. Is that reported 2018 guidance real? Have any Ministers ever agreed to sanction torture over the past year?

[Earl Howe]

My Lords, I am grateful to the noble Baroness and I align myself completely with the sentiment that she expressed at the beginning of her question. Central government consolidated guidance sets out the principles which govern the interviewing of detainees overseas and the passing and receipt of intelligence relating to detainees. That guidance must be adhered to by officers of the UK’s security and intelligence agencies, members of the UK Armed Forces and employees of the Ministry of Defence. An internal policy document within the Ministry of Defence was prepared to, as it were, make the consolidated guidance more accessible and practical for those implementing it in the field. The MoD concedes that, as currently worded, there is an ambiguity in the internal document. I should stress that this ambiguity has not led to any problem or difficulty in the actions taken by the department, Ministers or members of the Armed Forces. It has been identified that the internal policy document could give the incorrect impression that Ministers could in all circumstances simply choose to accept legal consequences and act illegally. That is absolutely not the case. Ministers may not proceed when it would be unlawful, as opposed to when they would simply be assuming legal risk, which applies to any ministerial decision. I reassure the noble Baroness that, to my knowledge and that of my officials, Ministers have in no circumstances taken a decision which was unlawful in this context.