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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