Examination of Witnesses (Questions 1-19)
RT HON
LORD GOLDSMITH
QC
7 FEBRUARY 2007
Q1 Chairman: Mr Attorney General, welcome
back to the Committee. Thank you very much for your memorandum,
which is very helpful and I think saves us from asking quite a
number of things we might otherwise have had to. It sets out very
clearly your view of your role and gives us some other interesting
material as well. In that memorandum you have referred to select
committees and when stressing your accountability to Parliament
you said that you could see value in scrutiny by a suitably well-informed
select committee. I take it that you had us in mind when you wrote
those words. In fact, you might be interested to know that when
the Committee was first set up it was originally proposed that
the Attorney General's office should come under our scrutiny,
but mysteriously it failed to be included.
Lord Goldsmith: I am aware of
that. Of course I had you in mind, although it is not, of course,
for me to say which (if this was the view of the House) ought
to be such a select committee, but you are absolutely right, that
is one of the points I can pick up. I can see merit in a slightly
more regular communication with the Select Committee than I actually
have at the moment.
Q2 Chairman: Is there not an associated
problem? The Minister of State in the Department for Constitutional
Affairs said as recently as last Saturday, "It is a contradiction
in terms to have an accountable office-holder who was unable to
publish the advice he had given to the people to whom he was accountable.
It is not enough for government ministers to say that the advice
is lawful. Backbenchers, let alone the wider public, want to see
for themselves what the arguments are." Do you agree and
is that Government policy?
Lord Goldsmith: I do not agree,
and it is not Government policy. I am getting very helpful advice
from ministerial colleagues at the moment from a number of directions.
It is not Government policy and I do not agree. There is one point,
from what I understand she said, which is important and I would
want to underline it because it is this point about accountability,
which I think is hugely important. On that issue, as I understand
what she has said, she takes the view, as I do, that it is important
to have the law officers within rather than without. Indeed, as
you said when we started, you have been voting on me at the moment
in a sense and the fact is that if one takes the example of BAE,
on three occasions now I have addressed and answered questions
in the House of Lords on this, the Solicitor General has also
on three occasions dealt with that. We have dealt with a large
number of parliamentary questions (PQs), also with correspondence,
none of which would, I believe, you could really expect to happen
but for the fact that the law officers are within and therefore
accountable to Parliament. I think that is a very important positive
point. The other point is the issue in relation to legal advice
and I set out in the memorandum—and it is well-understood,
it goes back a long time and the arguments have been well-rehearsed—why
confidentiality generally attaches to the legal advice which is
given. I do not think it would be in the interests of the Government,
for example, or of the country, if there was litigation and advice
given to the Government about the litigation, that that should
be published. That would only give aid and comfort, as it were,
to others.
Q3 Chairman: During litigation?
Lord Goldsmith: That is an example
which I give, but there are other examples as well. As I say,
they are set out in the memorandum, which I appreciate you have
read. If I can address quite directly then the question which
I know is at the forefront of many people's minds, what if there
were to be another occasion where a Prime Minister came to the
House saying, "For this reason and that reason military action
is something that we want to undertake, the Government believes
should be undertaken, and we ask you, Parliament, for your view
on that." I think under those circumstances, first of all
Parliament would expect and would have to receive a full explanation
of the legal basis for that, but it would be a matter for the
Prime Minister of the day to determine whether a way of doing
that was to disclose legal advice which had been received in that
respect.
Q4 Chairman: That directly contradicts
Harriet Harman's statement that backbenchers, let alone the wider
public, want to see for themselves what the arguments are.
Lord Goldsmith: I appreciate that,
but I am sure I have not come here simply to have a debate about
why I disagree with certain statements which have been made outside
government by a fellow minister. I am putting forward, and I have
put forward in the memorandum, what I understand at present to
be Government policy and what the arguments are in relation to
that and I have just addressed I think the key question, what
would happen if we found ourselves in this situation again? As
I have said, and I have no problem with this at all, it would
be for the Prime Minister of the day to determine how to ensure
that Parliament, and therefore the public at least through Parliament,
understood the basis upon which military action was being proposed.
Q5 Chairman: For those of us who
have been in the House for quite a long time things have in a
sense changed slightly because the concept of sending for the
Attorney was one which was quite current when I first entered
the House and the notion that he would be asking the Prime Minister's
permission in order to make clear something which the House needed
to know to make a decision did not seem to enter into that consideration.
Lord Goldsmith: If I may say so,
I think you raise a very important point about the sending for
the Attorney because I think things do seem to have changed. I
have always responded when I have been asked, for example, by
select committees to come and give advice really on the legal
position. I did it in relation to assisted dying, I have done
it in relation to the sub judice rule and I have
done it in the House itself, my House, in relation to smacking.
I think there is more opportunity for that to be done, but I think
that is partly a question for Parliament to say, "On these
occasions we actually want to hear from the law officers on this
or that issue," and then one has to determine whether it
is the right moment to do it and it is appropriate to do it. As
the memorandum says in principle, I think that I would welcome
more of that.
Chairman: We will return to some
aspects of this later.
Q6 David Howarth: There are two phrases
which constantly come up in your memo and in discussion with the
Attorney General. One is the Rule of Law and the other is the
public interest, and I just want to explore for a while your conception
of both those phrases. Can we start with the Rule of Law. How
would you define the Rule of Law?
Lord Goldsmith: It is a very good
question, because different people define it in different ways.
For me there are really three key elements in relation to the
Rule of Law. One of those is compliance with the law and that
means domestic and international obligations. That is a key part
of the Rule of Law and I am very happy to expand on the way in
which my role is concerned with that aspect of the RUle of Law.
The second part of the Rule of Law, as I see it, is the relationship
with the courts. That is partly respect for the courts and their
judgments, which is a hugely important part of having the sort
of democratic arrangements which we have, and again I can illustrate
the significance of that, but it is also about being sure that
within appropriate boundaries—and there are one or two boundary
limits on this—we subject ourselves as government to the
scrutiny of the independent courts. One of the big criticisms,
in my view, of what our otherwise very close allies, the Americans,
did in relation to Guantanamo Bay was to try and put it offshore
and away from the courts. I think that was completely wrong and
it is something which we would, I hope, never have contemplated.
So that is the second element of the Rule of Law. The third element
of the Rule of Law, I believe, is that there are certain basic
values which it is important to stand up for. Quite a number of
them are to be found, of course, in the European Convention. I
think there are some of those on which we ought not to be compromising.
One of those is a fair trial, for example, which I think is a
key principle. So those are the three headings into which I would
put the Rule of Law.
Q7 David Howarth: Let us take the
second one first. I think the first one we will come back to and
the third we will take as read, but the second one, the degree
to which government respects the principles of legality through
subjecting itself to the courts. One aspect of your job has to
do with prosecutorial discretion. That is non-reviewable?
Lord Goldsmith: Well, it is an
area where I am accountable to Parliament.
Q8 David Howarth: But not to the
courts?
Lord Goldsmith: There is not a
case where they have reviewed the exercise by me of discretion,
but they have in relation to the Director of Public Prosecutions
and other prosecutors. That is a relatively recent development,
it has happened in recent years, but they have not in relation
to any decision I have made.
Q9 David Howarth: Do you think that
situation is satisfactory, that you are in a sense outside the
Rule of Law when you exercise prosecutorial discretion?
Lord Goldsmith: I absolutely resist
the suggestion that I am outside the Rule of Law. I do not think
that is so.
Q10 David Howarth: In that second
sense, obviously not in the first?
Lord Goldsmith: No, I do not think
that can be right. For example, any prosecutorial decision, if
it is a decision to prosecute, finds itself in front of the courts
in any event and the courts will then determine whether or not
the prosecution should have taken place if there is not sufficient
evidence there, and the courts and judges will not be slow to
criticise if they think that although technically there was a
case to bring it was wrong in the public interest, the second
area you want to talk about. So I do not accept that at all, but
there is a question about accountability of the Attorney General.
The last time it was debated in the courts, the view of the House
of Lords was that when it came to the exercise of that discretion
the Attorney General's accountability was to the public through
Parliament rather than through the courts. Those are two different
mechanisms for accountability.
Q11 David Howarth: The controversy
is always about decisions not to prosecute rather than to prosecute,
and that is the one where the courts manage to exclude themselves.
We are back to Gouriet through to BAE Systems.
Lord Goldsmith: Not always. I
had a lot of controversy over decisions to prosecute in relation
to events which took place in Iraq. That was a decision to prosecute,
not to not prosecute, but I accept the point that there is a difference
between the two.
Q12 David Howarth: Yes, and the question
is whether a decision not to prosecute, say in the case of BAE
"S" is itself fully within the Rule of Law.
Lord Goldsmith: We have had three
hours, I think, of debate this afternoon but, if I may, I am not
going to let that point go by without saying a word about it because
I absolutely reject that. I think it is enormously important to
stress that the decision was taken by the Director of the SFO
and there has been threatened a judicial review of his decision,
so that is something which may end up in court. It is not a question
of the Attorney General's decision, but they may try and judicially
review me as well. So be it, we will see what the court has to
say about that, but what I do not understand is why it is first
of all not accepted that that was his decision when he says that
it was, and he said that very clearly on a number of occasions,
never mind about what I think about people not saying that is
the case. He is a very senior, experienced public servant who
has been doing this for a long time and why it is not accepted
when he says that was his decision I think is really something
one needs to ask about. Secondly, we know there is a controversy
in relation to the decision itself, one taken in relation to national
security, and people will have to judge for themselves what they
are saying, that they do not think there was a risk to national
security or that they would have been prepared to run it in any
event. Some of these decisions are tough decisions. The Director
was faced with a tough decision. He explained again today in an
interview why he took that decision and I think people should
respect him for that and accept that.
Q13 David Howarth: But you had a
part in that decision. You have an overall superintendency of
the SFO and the DPP?
Lord Goldsmith: Yes.
Q14 David Howarth: How do you understand
that relationship?
Lord Goldsmith: In that particular
case, he told me that his decision was that he should not continue
with the investigation in the light of the information that he
had and, as I have said very openly and came to the House of Commons
(as the Solicitor General did, too) to say I agreed with that
decision. Not quite on the same grounds that he had because I
had looked very carefully at the case. I had spent some three
days with the investigators from the SFO, I had taken independent
legal advice myself and I did not actually think the case was
going to get anywhere. I did not think that it was right that
we subject this country and the people in this country at risk,
serious risk, of national security for, in the Director's view,
an uncertain case and in my view a case which would not actually
have got anywhere.
Q15 David Howarth: That takes us
on to the public interest part of your thesis. Just an aside,
I think at one point the Government was suggesting on that particular
case that there was some sort of balance to be struck between
the Rule of Law on one side and the public interest on the other.
I gather you have now renounced that position?
Lord Goldsmith: I have not renounced
it because it was never my position. Let me just be clear about
this, because the SFO, when they made their decision, announced
it. It was a market-sensitive decision, it affected the market
considerably and there were all sorts of leaks so they moved very
quickly to announce it, which is entirely understandable. That
is also why the Solicitor General and I came quickly to the House.
We had to wait until after the markets were closed, but we came
at that stage. In their press release the SFO used an expression,
they said that it was necessary to balance the Rule of Law against
wider national considerations. I know what they meant by that.
It was necessary to balance the desirability of bringing a prosecution,
which is generally what you do, against other considerations.
That is a perfectly proper balance. I come back to that. I think
with hindsight it was an unfortunate expression because it could
be misunderstood and that is why in the debate last week I was
very happy to say that if anyone takes that as meaning that we
or I think that you can set aside the Rule of Law for reasons
of expediency or general interest, that is absolutely not the
position. But the Rule of Law does recognise that in all prosecutions
the prosecutor will have to take account of two factors, the sufficiency
of the evidence and whether the public interest is in favour of
prosecuting or not. That is set out in the code for Crown Prosecutors—I
see that you have a copy there—which has been always referred
to. It is laid before Parliament and it is required by statute
to be provided, and that has always required those two considerations,
so there is nothing wrong with looking at whether the public interest
is in favour of prosecuting or not.
Q16 Chairman: You took a different
view from the Director of the Serious Fraud Office as to whether
the case could actually have a chance of being successfully prosecuted?
Lord Goldsmith: Yes, I did. The
case had been investigated for two years. A lot of material has
appeared in the press about invoices, about payments which were
being made by BAE, allegations of a slush fund. That really relates
to the period before 2002. It was in 2002 we changed the law in
any event to make corruption of an overseas official clearly an
offence. The SFO's view was that they could not prosecute in relation
to any of that anyway. I agreed with that. Then there was a question
about the future. They said it would take a further 18 months
to investigate. I had for quite some time raised with them, because
this was not the first time the case had come up, concerns I had
about some difficulties which I believed would exist in prosecuting
that case. I raised them and I said, "You are going to have
to deal with that issue," and then we get the case back again
but there still is not an answer to that issue, and indeed the
evidence which is emerging to my mind makes that an insuperable
problem. So I did not believe that the case would be able to go
ahead. I think it is right to look at some of those issues because
I stand at the Despatch Box from time to time on cases which have
failed and I have done it in the House of Lords on the Jubilee
Line, on the Burrell case and on Trooper Williams and, as I have
said before, if people do not actually say, "Couldn't you
see this coming?" that is the sort of look in their eyes.
I do think, therefore, there is an important reason to stop and
look, and if it is clear that actually it is going to be insuperable
at the end of the day you need to take that into account at that
stage.
Q17 David Howarth: Coming back to
the public interest, just in broad terms were those issues legal
issues or issues of fact?
Lord Goldsmith: In a sense they
are both. They are fundamental issues which one has to handle
in a corruption case, and there are particular difficulties about
whether it would have been possible to deal with those in the
context of the particular constitutional position in Saudi Arabia
and the particular circumstances.
Q18 David Howarth: It has been suggested
that there is a problem with the definition of "corruption"
as opposed to establishing facts in a trial.
Lord Goldsmith: There is a proper
and lively debate about how the law of corruption should operate
in this country. We have worked on the basis of a definition of
corruption which requires you to have a principal and an agent.
So what you are really saying is, is the agent acting disloyally
to the principal? The normal way you do that straightforwardly
in an ordinary corruption case is that you call the managing director
to say, "Of course I didn't authorise the sales director
to use £50 notes," or whatever it may be, "and
he was the agent for the company". You need to have those
two. There is a case for whether that is the right way for our
law. The Government put forward a bill. It was essentially torn
to pieces on pre-legislative scrutiny and we have not yet brought
anything else back.
Q19 David Howarth: Coming back to
the point about public interest, and we may as well stay with
the BAE "S" case since it is fresh in everyone's mind,
how do you go about deciding what the public interest requires?
There is this thing called the Shawcross exercise and perhaps
you could tell the Committee what that involves?
Lord Goldsmith: Absolutely. The
public interest can often not require any external views whatsoever.
For example, it may not be in the public interest to prosecute
someone for an offence if it is likely to not add anything to
the sentence because they are already facing a lot of other serious
charges. It may not be in the public interest to prosecute because
someone is very ill. You may go to a doctor to find out if that
is so. Occasionally there are public interest considerations where
it is legitimate to seek the views of other ministers, not on
whether there should be a prosecution but on what the public interest
is. For example, if you can see that a prosecution might require
the disclosure of sensitive information you need to know how damaging
the disclosure of that information might be. So you would need
to know, perhaps from the Defence Secretary or the Home Secretary,
or the Prime Minister or the Foreign Secretary what the implications
for the disclosure of that information would be. As Sir Hartley
Shawcross said in a very famous answer in 1951 (that is why it
is called "the Shawcross exercise"), you go to ministers
and say, "Advise me, please, as to your view of the public
interest considerations." It is then for the prosecutor to
decide, to form his own judgment, but you need to be informed
by those who know best what the public interest considerations
are in that case.
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