Select Committee on Constitutional Affairs Written Evidence


Evidence submitted by the Rt Hon Lord Goldsmith QC, Attorney General

  1.  The Committee has asked for a note on my perception of my role as Attorney General. It is a role I have been privileged to hold since June 2001. This has been an eventful period. It has seen the UK engaged in two armed conflicts, in Iraq and Afghanistan. It has seen major terrorist atrocities at home and abroad. The Government has had to respond to the threat from terrorism in ways that have sometimes provoked both political and legal controversy. During the same period we have seen the bedding-in of the Human Rights Act 1998, with the need to make sometimes difficult judgments on the balance between individual rights and the interests and security of society as a whole. In the criminal justice area, for which I share Ministerial responsibility with the Home Secretary and the Lord Chancellor, we have seen much closer working between the different criminal justice agencies, a greatly enhanced role for the prosecutors, and the creation of a new prosecuting authority in the Revenue and Customs Prosecutions Office.

  2.  As Attorney General I have been involved closely in these important issues and many others—in giving legal advice; in the development and implementation of policy, particularly on criminal justice; in scrutinising proposed new legislation; and in striving to uphold the Rule of Law. I have also had to take, or to answer for, some difficult and controversial decisions in individual cases. This note does not attempt to give a comprehensive account of all my functions or the way I have undertaken them since June 2001. (A list of my main functions is attached.) But I will comment on some of the key features of my role as I see it.

  3.  This note considers five particular issues:

    —    Whether the role of Attorney General could better be performed by someone who was outside Government. On this, as I explain, my clear view is that more would be lost than gained from such a change.

    —    Linked to that, one of the key advantages of the current system is that the Attorney General is directly accountable to Parliament. This note considers the possibility of enhancing that accountability, perhaps through a specific select committee dedicated to scrutinising the work of the Attorney General's Office.

    —    Whether the nature of the Attorney General's role, in particular in upholding the Rule of Law, could be made more explicit, for example by changes to the oath of office or by legislation.

    —    Whether any changes should be made to the way in which legal advice given by the Law Officers is handled, and whether it should be made available in some way to Parliament and the public.

    —    Options for strengthening the role of Attorney General—whether for example there are additional responsibilities which could be assigned to the office.

  4.  I have worked within the existing arrangements which represent the Government's position. As I said in the House of Lords debate on the role of the Law Officers in December 2005, I have tried to do so on the basis of three overriding principles: to give legal advice and take decisions based on a scrupulous approach to the law and to the evidence; where I am exercising my public interest functions, to act on the basis of an objective, dispassionate assessment of the public interest, without regard to party political considerations; and to act independently, fairly and with accountability. I realise that there are some who wish to consider options for changing the current system. Ultimately decisions on change would not be for me or for any Attorney General; they would be a matter for the Prime Minister and the Government collectively, and potentially for Parliament.

CRIMINAL JUSTICE ROLE

  5.  By statute I am responsible for the "superintendence" of the main prosecuting authorities—the Crown Prosecution Service, the Serious Fraud Office, the Revenue and Customs Prosecutions Office and the Public Prosecution Service in Northern Ireland. I also superintend the service prosecuting authorities, soon to be combined into a single Service Prosecuting Authority by the Armed Services Bill.

  6.  The concept of superintendence has never been categorically defined. It was considered by Sir Iain Glidewell in his review of the Crown Prosecution Service in 1998. In broad terms superintendence can be understood to encompass: setting the strategy for the organisation; responsibility for the overall policies of the prosecuting authorities, including prosecution policy in general; responsibility for the overall "effective and efficient administration" of those authorities; a right for the Attorney General to be consulted and informed about difficult, sensitive and high-profile cases; but not, in practice, responsibility for every individual prosecution decision, or for the day-to-day running of the organisation.

  7.  The note deals below with my role in relation to individual criminal cases. That is a role I exercise independently of Government, in the public interest. But I comment first on my role as one of the criminal justice Ministers—with the Home Secretary and the Lord Chancellor—in particular given my responsibility for the prosecuting authorities. The role of the prosecutors in the criminal justice system is clearly key because they are front-line practitioners with the job of bringing offenders before the courts; and they operate at the centre of the criminal justice process.

  8.  It has been one of my highest priorities as Attorney General to strengthen and improve the prosecution service. I set out my vision at the start of my term and have devoted much time and effort to it. Good progress has been made, with the experience and expertise of prosecutors now being properly recognised in both the formulation and implementation of criminal justice policy. Some of the significant reforms made in this area include the following:

    —    The CPS has moved from being a demoralised backroom service, to a strong confident service. There are now CPS lawyers in all police charging centres. Prosecutors work much more closely with the police from the earliest stages of an investigation, whilst maintaining absolutely their independence in taking prosecutorial decisions.

    —    CPS now take charging decisions in all but minor and routine cases. As a result there are more guilty pleas and fewer cases are discontinued.

    —    We have greatly improved the level of service and support provided to victims and witnesses. 165 Witness Care Units have been established across all 42 criminal justice areas to improve support to witnesses: as a result fewer cases are having to be dropped because of witnesses failing to attend. And I have launched a Prosecutor's Pledge which sets out clearly the responsibilities of prosecutors towards victims.

    —    There is increased engagement with communities, including specialist prosecutors for rape, domestic violence and anti-social behaviour. Prosecutors are more visible and therefore accountable to the public.

    —    There are strengthened arrangements for dealing with serious crime, particularly terrorism.

    —    The CPS play a key role in the delivery of PSA targets, in particular increasing the number of offences brought to justice by over 150,000 and reducing the proportion of ineffective trials in the courts.

    —    Most recently the role of the prosecutor has been recognised with the introduction of Serious Crime Prevention Orders.

    —    I have created a new independent prosecutor in the Revenue and Customs Prosecutions Office.

  9.  I do not believe these reforms could have been achieved unless I had been able, as a senior Minister with specific responsibility for the prosecutors, to champion their interests within Government, ensure that their role was properly reflected in the development of criminal justice policy, and put the case for the necessary resources and powers.

  10.  Within the trilateral arrangements for criminal justice, I also have lead responsibility for a number of cross-cutting issues, including offences brought to justice, experts, and criminal case management.

THE RULE OF LAW

  11.   A key function of Attorney General, as I see it, is to uphold the Rule of Law. That includes most obviously my role as the Government's chief legal adviser, although it goes wider.

  12.  Of course only a small proportion of the legal issues that face Government are referred to the Law Officers. But by definition these are typically the issues of the greatest legal complexity or political sensitivity or which have the widest implications. In giving my advice I have sought to abide by the principles that my advice should be independent and impartial; that my approach should be constructive; and that I should be prepared to give unwelcome advice and stand firm where that is called for.

  13.  From time to time it is my job to say "no"—to advise that a particular course of action cannot lawfully be taken. Inevitably, those are the occasions that tend not to see the light of day outside Government, but they represent an important part of my function of upholding the Rule of Law.

  14.  Some would argue that such advice would be more independent, or carry greater credibility, if it were given by someone who was outside Government. I disagree. In response I would make the following points.

  15.   First, I strongly resist any suggestion that lawyers within Government (or any other organisation) are incapable of giving independent and impartial advice. Such an argument implies that no in-house lawyer can be independent. I do not think that can be sustained.

  16.  Secondly, I consider that I have been best placed to give frank, well-informed and constructive advice to my colleagues in Government precisely because, as a Minister, I am in a position to understand the system of Government, the process of policy formulation and the overall context in which the advice is sought.

  17.  Thirdly, in my view such advice tends to be more heeded by Ministers because it comes from one of their colleagues. As Professor Jeffrey Jowell has recently put it: "Surely ministers are more likely to accept such advice because it comes from `one of them', someone essentially on their side, rather than from some externally contracted technocrat".[12] By the same token, a minister receiving unwelcome advice is perhaps less likely to sweep it aside when it comes from a ministerial colleague rather than a civil servant or some external lawyer.

  18.  Discussion of the Attorney General's advisory role tends to be hampered by the fact that my advice is (like all legal advice) covered by legal professional privilege, and is subject to a long-standing convention which prevents disclosure of the advice (or even the fact that the Law Officers have been consulted) outside Government. Should these arrangements be changed? Lord Bingham for example has said that he sees "room to question whether the ordinary rules of client privilege, appropriate enough in other circumstances, should apply to a law officer's opinion on the lawfulness of war: it is not unrealistic in my view to regard the public, those who are to fight and perhaps die, rather than the government, as the client." [13]

  19.  As was made clear in the Government's evidence to the 2006 inquiry by the House of Lords Constitution Committee into war-making powers, it is important for Parliament (and the public) to be given a proper explanation of the legal basis on which such key decisions are taken. This is what happened in relation to Iraq in 2003.

  20.  It cannot be excluded that there may be exceptional cases where it will be right also to disclose the underlying legal advice given to the Government by the Law Officers. However, as was again explained to the House of Lords Constitution Committee, to do so in the generality of case would present difficulties.

    —    The purpose of legal professional privilege is to permit complete candour between client and lawyer—in both directions. Even if, in some specific cases, "the public" were to be regarded as the Attorney General's client, in practice he would be dependent on the relevant Government department(s) for his instructions, that is to say the raw material on which his advice is to be given. The Attorney's advice could only be fully informed if those instructions were themselves fully candid. The instructions—and hence the advice—might need to make reference to sensitive matters, such an secret intelligence or military plans, which it would not be in the public interest to disclose.

    —    As the then Chairman of the Bar, Stephen Irwin QC said in relation to the debate about whether my advice on the use of force against Iraq should be published:

    "Were this advice to be published, it would leave future Governments of whatever hue in difficulty when it comes to obtaining legal advice on major matters of public or international law. That would be clearly against the public interest. It means the Government might not ask for advice when they should or might not reveal all the facts when they do."

    —    In some instances (not all) the proposed course might be susceptible to legal challenge. Any full legal advice will consider the arguments both for and against what is proposed. Publishing the advice in full would risk giving ammunition to potential challengers (whether in the UK or overseas).

    —    In relation to military action, there is a particular need for certainty and clarity precisely because (as Lord Bingham said) people are being asked to fight and perhaps to die. In the end what is needed from the Attorney General is a yes or no answer. The public are entitled to know that answer and the legal basis for it. But the interests of certainty and clarity would not necessarily be served by publication of the full advice which might (as mentioned) include references to arguments both ways.

  21.  As mentioned, my role in upholding the Rule of Law is not confined to the giving of legal advice in a narrow sense. For example the Law Officers are members of the Cabinet Committee on the legislative programme and see all draft Bills. We advise on issues of propriety and legal policy, such as the scope of delegated powers, the early commencement of Bills and questions of retrospection. Even where Law Officers' advice has not been formally sought, we see the human rights memorandum produced on each Bill and act as scrutineers of the departmental analysis of ECHR compliance.

  22.  My wider responsibility to uphold the Rule of Law is illustrated by the role I played in negotiating, on behalf of the Government, for the return of the British detainees formerly held at Guantanamo Bay. Clearly there were difficult issues of law, policy and security. I do not believe I could have handled that role effectively had I not been a member of the Government, and been seen to be speaking with the authority of Government. As Professor Jeffrey Jowell has put it: "When [the Attorney General] expresses these values [in relation to Guantanamo Bay and human rights] as a Minister of the Crown, rather than a mere detached outside adviser, they are articulated not as mere expressions of the law but of Government policy."

  23.  An example in another area is the review I put in place to examine nearly 300 cases of infant death following the Court of Appeal judgment in relation to Sally Clark and Angela Cannings, in order to determine whether any convictions should be reconsidered for example by being referred to the Court of Appeal.

  24.  More recently still, Mr Justice Girvan in the Northern Ireland High Court referred to me certain concerns about the appointment of the Interim Victims Commissioner. In doing so he referred to my "function of protecting the due administration of justice". I have appointed Peter Scott QC to conduct an independent review of the matter.

THE PUBLIC INTEREST

  25.  In addition to my functions as a member of the Government, I have a number of functions which I exercise independently of Government, in the public interest. The distinction between these two roles is admittedly not always well understood but it is very long established.

  26.  Among my public interest functions are those which I exercise in relation to individual criminal cases. They include:

    —    The requirement for my consent to prosecute certain categories of criminal offences, such as those relating to Official Secrets, corruption, explosives, incitement to racial hatred, and certain terrorism offences with overseas connections.

    —    The power to refer unduly lenient sentences to the Court of Appeal.

    —    The power to terminate criminal proceedings on indictment by issuing a nolle prosequi.

    —    The power to refer points of law in criminal cases to the Court of Appeal.

  27.  Amongst my other public interest functions are:

    —    Power to bring proceedings for contempt of court.

    —    Power to bring proceedings to restrain vexatious litigants.

    —    Power to bring or intervene in certain family law and charity proceedings.

    —    Power to bring or intervene in other legal proceedings in the public interest.

  28.  I have said above that, when I am exercising my public interest functions, I do so on the basis of an objective, dispassionate assessment of the public interest, without regard to party political considerations. I believe my Ministerial colleagues would vouch for that. I acknowledge that some of the decisions I have taken have been controversial. There is nothing new in that. One of my very early predecessors, Francis Bacon, described the position of Solicitor General as "one of the painfulest places in the Kingdom". Rather more recently, there was the notorious decision of Sir Patrick Hastings to drop the prosecution of John Ross Campbell in 1924, which led to the collapse of the Ramsay Macdonald government. Other more recent Attorneys have faced controversy, for example:

    —    The decision of Sir Peter Rawlinson not to prosecute Leila Khalid, a member of the PLO arrested for the attempted hijack of an Israeli airliner in 1970.

    —    The cases of the Clay Cross councillors and Gouriet in the time of Sam Silkin.

    —    Sir Michael Havers' consent to the prosecution of the civil servant Clive Ponting under the Official Secrets Act, following disclosure of information relating to the sinking of the Belgrano.

    —    The collapse of the Matrix Churchill trial, leading to the Scott report into Arms to Iraq, in the time of Sir Nicholas Lyell.

  29.  It is inherent in the role of Attorney General that it sometimes falls to the holder of that office to make controversial or unpopular decisions. As one academic writer has put it: "It would seem that where politically contentious decisions are concerned, the Attorney General is unlikely to escape criticism whatever [decision] he makes". However the examples I have mentioned give the lie to any idea that the role of Attorney General has become more "political" or more controversial in recent years.

  30.  A number of other points might be made. First, the sorts of decisions to which I refer will always fall to be taken by someone, and would be liable to be controversial whichever figure took them. The recent decision to discontinue the Serious Fraud Office investigation into BAe Systems in relation to the Al Yamamah contract with Saudi Arabia was taken not by me but by the Director of the SFO. As I have explained, the Director acts under my statutory superintendence and I agreed with his decision to halt the case, although I have made clear that I thought the investigation was unlikely to lead to successful prosecutions in any event. But I venture to suggest that the decision would have been no less contentious if there had been no role for the Attorney General at all.

  31.  Secondly, it is worth emphasising that the Attorney General's public interest functions are assigned to him by law. The decisions in question are not ones which the Attorney can avoid. Some of these functions are derived from the Attorney General's common law and constitutional role and are very long-established—for example the power to enter a nolle prosequi or to consent to relator proceedings to enforce the law. But Parliament has continued up to the present day to confer new functions on the Attorney General—a recent example being the Attorney's statutory role of appointing special advocates, to safeguard the fairness of certain proceedings involving highly sensitive material which cannot be disclosed in the ordinary way. Such functions have been conferred by Parliament presumably on the basis that they should be exercised by an office-holder of suitable authority who is capable of acting in the public interest and in the interests of the Rule of Law.

  32.  The third point is that as Attorney General I am answerable to Parliament (in a way which an appointed official would not be) for all my functions, including my public interest functions. This note deals next with my role in relation to Parliament.

ACCOUNTABILITY: ROLE IN RELATION TO PARLIAMENT

  33.  I have always regarded my accountability to Parliament as paramount. In a typical year the Solicitor General and I answer some 400 Parliamentary Questions and reply to some 250 letters from Members of Parliament or Peers. We make ourselves available to Members of either House who wish to raise particular issues with us. On occasion we are required to answer urgent questions in either House.

  34.  The recent SFO decision in relation to BAE Systems gives a good example of the Law Officers' Parliamentary accountability. As soon as possible after the decision had been taken, the Solicitor General and I came to Parliament to explain it and answer questions. We have both answered oral questions and numerous written questions about the case. We have corresponded with many members of both Houses about it. Last week I responded to a further debate in the House of Lords about the case. Any change to the role of the Attorney General, or to the superintendence of the prosecuting authorities, would need to address the question of accountability to Parliament.

  35.  My Parliamentary role goes wider. On occasion I advise Parliament on matters of privilege and procedure, and I have the function of intervening in legal proceedings to assert the privileges of Parliament. I am always ready to give advice and assistance to Parliament or its Committees on particular issues. For example, I gave advice in a debate on the Bill for the Children Act 2004 on the smacking of children. I have appeared before this Committee in connection with the role of special advocates, and before the House of Lords Constitution Committee in relation to the use of prerogative powers. I gave evidence to the Committee on the Assisted Dying for the Terminally Ill Bill to explain the relevant law in that area. And I have given evidence to the Procedure Committee on the sub judice rule. There may be scope for the Law Officers being asked to advice Parliament and its committees more frequently, and I would welcome that.

  36.  Are there ways in which the Law Officers' accountability could be enhanced?

    —    I have stressed my accountability to Parliament. At present however there is no Parliamentary committee specifically charged with scrutinising the work of my office. This would of course be a matter for Parliament itself but I can see value in such scrutiny by a suitably well informed select committee. There would of course need to be some limitations, for example in relation to current criminal cases and national security issues. But such an arrangement could significantly enhance accountability for, and understanding of, the Attorney General's role.

    —    In the lecture to which I have referred, Professor Jowell suggested two possible ways of clarifying the Attorney General's role. One is the imposition of a statutory duty (comparable to that imposed on the Lord Chancellor by the Constitutional Reform Act) to promote the Rule of Law. This might be coupled with further provisions as to the qualifications for appointment as a Law Officer and the nature of the role. As I have said previously, [14]I do not understand these proposals to amount to any change in what the Law Officers do. Rather they would codify the role in a way which might give greater clarity and transparency.

    —    Professor Jowell's second suggestion is a change in the Attorney General's oath of office. The existing oath is very ancient and somewhat impenetrable. There might be merit in a more modern version which could explicitly set out the elements of the role, including the public interest functions and the duty to uphold the Rule of Law.

    —    Is there also a case for examining whether the content of the Attorney General's role could be enhanced? The existing functions of the office (as shown by the attached list) are numerous and varied. It is for consideration whether there may be other functions, in the criminal or civil field, currently performed elsewhere in Government which would sit naturally with the Attorney's existing functions. The current debate about the allocation of legal and justice functions within Government gives an opportunity for such consideration.

CONCLUSION

  37.  I will of course be happy to expand on any of these issues in writing or in oral evidence, if that would assist the Committee.

February 2007








12   Lecture in 2006 entitled: "Politics and the Law: Constitutional Balance or Institutional Confusion?" Back

13   Sixth Sir David Williams Lecture: "The Rule of Law"; Centre for Public Law, 16 November 2006. Back

14   Lecture entitled "The Role of the Attorney General in Changed Constitutional Circumstances", College of Law, Birmingham, 29 November 2006. Back


 
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