Examination of Witnesses (Questions 40-59)
RT HON
LORD GOLDSMITH
QC
7 FEBRUARY 2007
Q40 Chairman: Could not the minister
of justice have been doing that, amongst other things, while you
or some other person—well, I will not say you because you
are actually a politician now -
Lord Goldsmith: I am not sure
about that actually, but anyway -
Q41 Chairman: Well, we are quite
sure. You take the Labour Whip in the House of Lords.
Lord Goldsmith: Well, if that
is the definition, yes, of course.
Q42 Chairman: A minister of justice
could have been doing the very job you describe for the Crown
Prosecution while somebody else, not a politician, was taking
those prosecutions?
Lord Goldsmith: I do not think
it would have happened. I do not believe it would happen. The
prosecutors are quite a small group compared with the demands
of prisons, the police and courts.
Q43 Chairman: They are not doing
very well financially either at the moment!
Lord Goldsmith: Well, I have done
reasonably well for those I have been looking after is all I can
say.
Q44 Jeremy Wright: I think the Chairman's
argument is not that it is not right to have a champion for the
CPS in government, able to speak to government with the authority
of a minister, the question is, why does that have to be the same
person as someone who deals with legal questions and legal decisions
which part of your job also involves? Why does it have to be the
same person? It is not why does it have to be a person but why
the same one?
Lord Goldsmith: My own view is—and
I have thought very hard about these questions over a period of
time, not just as a result of recent comment but over a period
of time and that is reflected to some extent in what I have said
publicly about it—there are advantages and disadvantages
in all arrangements that one can think of, and I certainly do
not suggest that the present arrangement is not capable of some
improvement and I suggest some in the paper which I have put forward.
But my judgment is, having done it—and it is the judgment
of those who have done this before me—is that the advantages
outweigh the disadvantages.
Q45 Mr Tyrie: We have, I think it
is fair to say, a considerable amount of controversy and some
might argue a collapse in public confidence in aspects of your
role. We have had the Iraq advice controversy, we have had the
BAE advice, a decision of controversy, and then there is the "cash
for honours" issue. How do you think we can restore public
confidence in the office of the Attorney General?
Lord Goldsmith: I think there
is actually a much broader question about confidence in politics
or parts of politics at the moment, and I think we are affected
by that. We will all have our views on the Iraq conflict. I think
there has been a great concern from many that the statements which
were made, the belief that there was about the existence of WMD
did not turn out to be the fact. It was not actually part of my
advice, but I think it has coloured the whole of the debate in
relation to this. I think in so far as what you term as "cash
for honours" I have been clear as to what would happen if
a question was referred to me.
Q46 Mr Tyrie: Why do you not just
explain what that is now, for the benefit of the Committee?
Lord Goldsmith: I will, absolutely.
If a question is referred to me—there was one yesterday
which was not, and there is absolutely no reason why it should
have been, but if it is referred to me then my office will appoint
independent leading counsel to advise and, I make it clear, in
the event that there is not a prosecution then I will make public
that advice. That will mean that the public will know openly,
it will be transparent, what the reasons are and why.
Q47 Mr Tyrie: You said in your original
letter and statement on that that you would make public the conclusions
of that advice. Are you now making it clear to us that you will
publish the whole of that advice?
Lord Goldsmith: I just want to
look to see precisely what I said. What I had in mind at the time
was that it is possible—this is all hypothetical, absolutely,
and I do not know anything about the state of this—
Q48 Mr Tyrie: But my question is
quite straightforward.
Lord Goldsmith: I appreciate that,
but I really must make that point clear.
Q49 Mr Tyrie: Are you now saying
that you will publish the whole of the advice which you were given?
Lord Goldsmith: The whole of the
advice which relates to the decision not to prosecute. What I
had in mind is that somebody might write an advice which deals
with more than one person in relation to which there could be
a prosecution. I do not think it would be right to publish that.
That might be prejudicial.
Q50 Mr Tyrie: I think what you have
said will be perceived as an advance on where we were, and a welcome
one, and I am grateful for that. There remains the question to
which Helena Kennedy has alluded with respect to the Iraq advice.
On the Iraq advice she said that there was only a couple of lawyers
who would have concluded that going to war without a second UN
resolution was legal. Whether that is true or not—
Lord Goldsmith: It certainly is
not.
Q51 Mr Tyrie: Let us set, whether
or not it is true to one side. There is a public confidence issue
here with respect to the person you choose to supply this advice.
Will you undertake also to consult Opposition parties in an attempt
to secure prior agreement on whom you will consult and from whom
you will seek that advice?
Lord Goldsmith: I have not thought
about that before, but I am perfectly content to do that.
Q52 Mr Tyrie: I am very heartened
by that. I think those are two very valuable reassurances. We
have been discussing your accountability to Parliament in a more
general sense. Do you think it is reasonable that you can refuse
to come before a select committee of the Commons?
Lord Goldsmith: I do not believe
I ever have.
Q53 Mr Tyrie: I did not ask you whether
you have refused, I asked you whether you think it is reasonable
that you are constitutionally capable of refusing?
Lord Goldsmith: Well, I have always
come when I have been invited to a Commons select committee.
Mr Tyrie: I will ask the same
question a third time. Do you think it is reasonable constitutionally
that you can refuse to come before a select committee in the Commons?
Q54 Chairman: Has nobody told you
that you could refuse?
Lord Goldsmith: If they had, I
still would have come. The reason I am putting it that way is
that I do not quite understand what the reason is for this constitutional
position. Anyway, the position as far as I am concerned—
Q55 Mr Tyrie: You are a Member of
the House of Lords and therefore—I never thought I would
find myself instructing the Attorney General—
Lord Goldsmith: On parliamentary
procedure, perhaps.
Q56 Mr Tyrie: Maybe that points to
what I am moving towards saying, which is that I wonder whether
your reply reflects an aspect of the risks of having somebody
in an office of such political sensitivity who, as far as I am
aware, has never been involved in an election, has not been a
Member and is not at the moment a Member of the House of Commons?
Lord Goldsmith: I certainly have
not been elected to office in this House. I have been involved
in elections, but they are a different form, not general political
elections. I entirely accept the point. I am not a Member of the
House of Commons. That is the way things have turned out and it
is the Prime Minister who chose me to perform this role. I think
it is a very serious point and I want to make clear what my position
is. I do not think it would be right, whether constitutionally
possible or not, for an Attorney General, wherever he comes from,
to refuse to attend before a select committee of the House of
Commons. I make that very clear. I think it would be right to
do so, and indeed part of what I have actually said in this memorandum
is to suggest the possibility of a more regular communication
either with this select committee or with another select committee
looking particularly at the role of the law officers. Secondly,
at the time of taking this office I even wondered whether it was
possible in some way to be able to be, as it were, accountable
to the House of Commons. There are jurisdictions in which ministers,
wherever they are, are capable of being summoned before either
House. I entirely understand the Commons takes a view about only
hearing from its own Members.
Q57 Mr Tyrie: Both Houses do.
Lord Goldsmith: Well, whether
both Houses do or not, I raised the possibility, as I say, shortly
after I had taken office as to whether that would be possible.
I was told it was not possible, so no standing at the Bar of the
House of Commons and dealing with issues from there.
Q58 Mr Tyrie: You have suggested
creating a department headed by you accountable to a select committee
directly. Is not part of the problem going to be that some of
the information the select committee will want to see in order
to assess whether you are doing a good job is the very advice
which is never going to be available? Therefore, do you not think
that we need to put in place arrangements where ex post facto
this advice is made available and that where still there may be
sensitivity, that the government perceives, a mechanism is found
where a group of parliamentarians, probably from that committee,
can read that information in camera and cross-examine you in a
private session about that information?
Lord Goldsmith: I think one would
have to look absolutely at both constraints on certain information—there
could be all sorts of information, information about individuals,
information about national security, all the rest of it—and
how one actually dealt with those. I think those are very proper
things that one would want to look into. There are arrangements
which exist already within the select committee machinery where
certain committees do look at certain material which is not publicly
available and they do it on particular terms.
Q59 Mr Tyrie: You were thinking in
particular of -
Lord Goldsmith: I was thinking
of the ISC, for example, the Intelligence and Security Committee.
| 
