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Mr. Michael: The simple answer is that it would depend on what was relevant to the decision that the Attorney-General was to take. The human rights situation in another country could be taken into consideration in deciding where the public interest lay. I am sure that hon. Members can think of examples of occasions on which they would want the Attorney-General to take the decision to prosecute.
Expressing the doctrine of the Attorney-General's power, Lord Shawcross said that the responsibility for the eventual decision rests with the Attorney General, and he is not to be put, and is not put, under pressure by his colleagues in the matter. Nor, of course, can the Attorney-General shift his responsibility for making the decision on to the shoulders of his colleagues. If political considerations affecting government in the abstract arise it is the Attorney-General, applying his judicial mind, who has to be the sole judge of those considerations.
In explaining the context, Lord Shawcross also said that there might be a variety of issues of which the Attorney-General was informed through the knowledge of his colleagues, so that he could take them into account. Those issues might include some that have been mentioned tonight. The Attorney-General's responsibility is clear: what he can take into account is not limited.
Mr. White:
I am a relatively new Member, and I am slightly confused about the Attorney-General's role. Sometimes the Attorney-General has taken decisions that have caused a public outcry. How would the House or individuals go about securing redress when taking out or not taking out a prosecution caused an outcry?
Mr. Michael:
That would work largely through the normal processes of accountability. The Attorney-General is a member of the Cabinet and answers to the House. We are talking about the decision to agree to proceed with a prosecution. Once the decision is taken to allow that to happen, the case has to go through the courts and the rights of appeal have to apply. There are also other constraints and pressures on the Attorney-General to act properly. His role is to act as the guardian at the gate for the appropriateness of the prosecution and to consider the public interest. Issues concerning which cases to prosecute and the degree of seriousness would come into the ambit of his discussions. I hope that that is helpful.
Mr. Corbyn:
My hon. Friend may have made the situation worse, as he appears to be saying that the Attorney-General could undertake a prosecution and that, once it had been undertaken, the House could not involve itself in any way in questioning that decision, because it had become sub judice by virtue of the fact that it could go before a court. We are concerned that a combination of political and commercial pressures could encourage the Attorney-General to take action against people for actions happening in another country.
Mr. Michael:
My hon. Friend conflates two entirely separate points. I said that, as the Attorney-General is a Cabinet member, there are processes of accountability; in a separate point, I said that his decision to take out a prosecution is not the end but the beginning of the process, which would lead to decisions in the courts, which would have to consider the case that had been made out.
Mrs. Fyfe:
Where does that leave people who could in no sense be called terrorists but who are perhaps democrats trying to oppose as effectively as possible some
Mr. Michael:
To answer that I shall have to approach the issue from a different direction. I am trying to be as helpful as possible in responding to hon. Members. To understand the matter, one must turn to page 7 of the Bill and read the clause that sets down the conditions that create the possibility of a prosecution. They include an act, happening or event in another country. The second requirement is that the act or event
Mrs. Fyfe:
The point that I am trying to get across is that such dissidents would not know in advance what the Attorney-General would find acceptable, especially when circumstances are so fluid as to be affected by notions of public interest at a given point in time. An action that was an offence in another country could be minimal and not a case of murder or kidnapping or blowing up buildings. It might be an offence here too, but it could be trivial in the context of this country. In the kind of regime that I am talking about a woman can have her nails pulled out for wearing nail varnish. What kind of activities can those people engage in that are of any use under such regimes? Are they confined to stay on the safe side and write pamphlets?
Mr. Michael:
I do not want to trivialise the issue, but as far as I am aware the pulling out of nails for wearing nail varnish has not been suggested as a possible offence in even the most draconian proposals by any party in Parliament. People would know what was an offence in this country, and an act that is an offence in another country is not sufficient in itself to fall within the provisions. The act must be an offence in this country as well and the other conditions must be satisfied. We are not debating a measure that anybody will consider using for trivial offences or for expressing an opinion or criticising a regime. Such actions are not offences in this country. I think that my hon. Friend the Member for Maryhill asked that question during a debate on the conspiracy and incitement measure that was considered about two years ago. I expressed reservations about that legislation on precisely the grounds that she raises.
Those dangers are not present in what we are presenting here. As my right hon. Friend the Home Secretary said clearly at the beginning of the debate, and which I say with equal force now--
Mr. Allan
: The specific offence that I would like the Minister to consider is that of criminal damage. That is clearly an offence here and will be in another country. It is frequently a consequence of political activity against a regime, but I would not consider it sufficient reason to prosecute someone in this country if it were committed in the exercise of someone's democratic right against the sort of despotic regime that has been described.
Mr. Michael:
That is quite a good example. As always, the hon. Gentleman is helpful. It would be unwise for me to enter into the mind of the Attorney-General, but I have great confidence, particularly in the present incumbent of that role. It would be a total shock to me not only if he regarded the painting of graffiti against a regime as justification for the use of these powers, but if an Attorney-General of any party were to consider that appropriate. I see that my right hon. and learned Friend encourages me in my--
Mr. Canavan:
He will not be in the job for ever.
Mr. Michael:
Earlier it was predicted that my right hon. and learned Friend would be in the job for ever, so I would not like to contradict comments made by colleagues earlier. I certainly hope that he is.
Mr. David Heath (Somerton and Frome):
Does the Minister accept that by extending the scope of the provision beyond terrorism and serious offences to any offences which are offences in this country and elsewhere, he opens the Attorney-General to all sorts of additional pressures in the exercise of his discretion in that the public interest then becomes conflated with the national interest? How is the Attorney-General to respond to requests from regimes with which we may not be on friendly terms but which are asking for prosecutions? He has two alternatives. Either he says that he will not prosecute, but he has no criteria to put forward to explain his decision, or he accedes to that pressure and prosecutes in circumstances in which the House may well not wish to see a prosecution take place and yet we would have no way under the Bill of limiting that discretion which is given to the Attorney-General.
Mr. Michael:
Hon. Members need to consider the exercise of the powers of the Attorney-General in law. They are not powers that can be exercised at whim. I return again to the definition of Lord Shawcross who said:
All of us in coming to the concept of the Attorney-General having this responsibility rather than the power of taking the decision might think that all that the Attorney-General has to say is whether he would like something to happen. It is not. He has a clear duty to weigh the public interest in the balance. Precisely the sort of areas of concern that hon. Members are raising are appropriate.
"constitutes an offence under the law in force in that country".
The third condition makes it clear that it has to be an offence in this country as well, and the fourth condition is that an act of some sort in this country is the trigger for the conspiracy and the prosecution. The four conditions have to be satisfied. For example, if my hon. Friend the Member for Glasgow, Maryhill (Mrs. Fyfe) is afraid that a simple way to express views democratically in another country was illegal in that country, it would have to be illegal here to be caught by the provisions and would have to satisfy the other requirements. In addition, the Attorney-General would have to look at the matter and decide that the public interest would be served by a prosecution here in relation to those events.
4.30 am
"It is the duty of an Attorney-General, in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect that the prosecution, successful or unsuccessful as the case may be, would have upon public moral and order, and with any other consideration affecting public policy."
That includes the sort of issues that the hon. Gentleman raises.
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