Select Committee on Constitutional Affairs Written Evidence

Evidence submitted by Professor John Spencer QC

  Thank you for your letter of 21 March inviting me to send the Committee written evidence. Unfortunately it arrived just after I set off for an extended visit to Japan, and in consequence I was not able to respond by 16 April, as you asked. Although I have missed the deadline, I thought I would still reply, in the hope that my views might still be of some use or interest.

  My comments in this letter will be about one aspect of the matter only: namely, whether the Attorney General ("A-G") should have the legal right to stop a prosecution.

  On this my view is "no".

  The theoretical objection to this power is that it is, potentially, a tool for what is sometimes called "the instrumentalisation of criminal justice"; that is to say, the use of the criminal process by the government of the day a means of attacking its political opponents, and protecting its political friends. Historically, of course, that is one of the reasons why the power existed. The power of the A-G to start or stop prosecutions dates from the days when it was thought (at least by many people) to be quite right for the King to react to his political critics by prosecuting them for "political offences" such as seditious or blasphemous libel, and in such matters the A-G was the right arm of the government. Fortunately, nowadays nobody in this country would—at least publicly—defend the powers of the A-G on the ground that the prosecution process is inherently political, and hence a matter on which the executive must retain the final word over the institution of prosecutions. But even if the A-G's power to control the institution of prosecutions is no longer used or justified in this crude sort of way, and the current theory is that it is just a "safety-valve" to enable prosecutions to be stopped in the rare case where the broader interests of the state are threatened by their continuance, the A-G's power to stop prosecutions on "political" grounds is (to me) unacceptable because it undermines the notion of the Rule of Law.

  The main argument for the present state of affairs is this. "In this country, the rule is one of discretionary prosecution. There are some cases in which prosecutions can and should be dropped on grounds of the broader interests of the state. To allow this does, admittedly, involve a potential risk of the `instrumentalisation of criminal justice' by reason of the fact that the politicians who are in charge will see the interests of the state as coincident with their own (or those of their political supporters). But in order to guard against this risk, we have the rule that, when he makes the decision, the A-G acts independently of the government. He will, of course, listen to what his political colleagues have to say. But when he takes the decision, it is his, not theirs. And in making it, he leaves considerations of party politics out of account."

  I do not think this argument stands up, for the following reasons:

    (a)  The present position is enshrined in a "convention", and it is not a Rule of Law. It exists because, since the early 20th century, successive A-G's have chosen to follow the convention—and successive Prime Ministers have accepted this. But like all constitutional conventions, it could end by those involved just ceasing to respect it. (At one time, we thought it was a constitutional convention that Ministers did not publicly abuse judges whose decisions they did not like. But when Mr Blunkett, as Home Secretary, made a habit of it, his political colleagues smiled upon him—and the convention apparently dissolved.)

    (b)  The A-G's supposed "independence" is no different, surely, from the position of any other Minister who is charged with decision-making in a particular area. It is the same in principle, as the Home Secretary's when—as used to be the case, and is still the case occasionally—he decides on when a prisoner held on an indeterminate sentence shall be released. (And to me, it is equally inconsistent with the politically independent administration of justice.)

    (c)  The A-G, like any other Minister, can be removed from office at the will of the Queen (in theory)—which means, of course, of the Prime Minister. This appears to be a serious limit, in reality, on his supposed independence.

    (d)  The position, surely, is both contradictory and hypocritical. If it is really necessary for there to be a power to stop prosecutions in cases where their continuance would put at risk the higher interests of the state, why should this decision rest with the Attorney General? The higher interests of the State, surely, ought to be a matter not for the Prime Minister and the Cabinet to decide—not a lone Minister, who by convention is not a member of the Cabinet.

  The real question, surely, is whether it is necessary for the Executive (in whatever shape of form) to have a power to stop prosecutions on grounds of the broader interests of the state. There are arguments in favour of this, and arguments against. At one time, I thought (like Lord Goodhart) that the arguments in favour were more convincing. I no longer do so. My present view is that the risks of abuse exceed the benefits. And, as I said in an interview with Clare Dyer of the Guardian some weeks ago, one of the risks is that political leaders in other countries which do not respect the Rule of Law will lean on our Government to stop prosecutions which they find embarrassing. As long as the power exists, the Government can be put under pressure to exercise it. If it does not, the Government can reply "Sorry, we cannot help you"—as it would if a foreign dictator tried to lean on the Government to restrain adverse comment in the press.

  The other argument for the present state of affairs is that "We need a Minister at the head of the CPS, who is politically responsible for it". Yes, of course we do. But I fail to see why that means the Minister must have the power to stop a prosecution. The Home Secretary is the Minister responsible for the police; but—fortunately—that position does not carry with it the right to force the police to investigate or prosecute, or to halt an investigation in a given case.

  I find it strange how, in this country, we accept as an article of political faith the need for the police to be independent of the Government in their decision-making—but do not transfer this argument to the next layer, which is the CPS (and other prosecution agencies).

  As you know, the new prosecution arrangements for Northern Ireland, when eventually brought into force, will set the DPP for Northern Ireland free from the power of the Attorney General to give him orders in a given case. I think this was the right decision—and the same legal formula should be adopted for England and Wales.

April 2007

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