Examination of Witnesses (Questions 60-79)
RT HON
LORD GOLDSMITH
QC
7 FEBRUARY 2007
Q60 Mr Tyrie: I am very concerned
by this cross-examination because you are unaware that the Intelligence
and Security Committee is not a select committee of Parliament.
Lord Goldsmith: Forgive me.
Chairman: I have an interest as
a member of it.
Mr Tyrie: It cannot come to its
own conclusions and publish them independently of prior scrutiny
and censorship by the Prime Minister. Therefore, it does not provide
the same level—and indeed the reports are, whether one calls
them censored, redacted, whatever you like, abridged or redacted
from time to time. So that does not give us the full assurance
that we would like. You referred to security—
Chairman: I must not allow a question
to pass on something which I ought, in my position, to correct,
which is that of course the committee is entirely free to come
to its own conclusions.
Mr Tyrie: It is free to come to
its own conclusions, but when it publishes them the Prime Minister—
Chairman: I do not think it is
helpful for us to have a debate across the floor of the Committee
about facts which can be established. I think you had better put
a question to the Attorney General.
Q61 Mr Tyrie: I did not begin the
debate with you, but I will come to the point I wanted to ask,
which is that you referred to the fact that there were security
issues behind the decision not to go ahead with the BAE investigation,
issues of national security?
Lord Goldsmith: I did not say
they were behind the decision, I said they were the reason for
the decision.
Q62 Mr Tyrie: They were the reason
for the decision?
Lord Goldsmith: Yes.
Q63 Mr Tyrie: Why not refer those
to the Security and Intelligence Committee?
Lord Goldsmith: Well, nobody has
made that suggestion so far. If the suggestion is made, if that
was something which the Security—
Q64 Mr Tyrie: Perhaps the Chairman
will take that away as a thought.
Lord Goldsmith: Maybe, but I must
be very clear about this. This is not my intelligence information.
This is not my national security assessment, and there are others
from the Prime Minister down who would have a view in relation
to that, but if I may come back to the point. Pick me up on parliamentary
procedure in the House of Commons by all means, but the fundamental
point—and I hope it was helpful—was actually to come
to this Committee and say, first of all, I think in the debate
about whether you want some civil servant dealing with these issues
or you want somebody within Parliament, who is accountable to
Parliament, my judgment is that being accountable is better. Think
of the implications otherwise. The questions you are putting to
me now, the questions which have been put to Mike O'Brien in the
House this afternoon, the questions which have been put to me
in the House of Lords, none of those would have been put about
BAE if there had been a civil servant who was responsible for
this. The second point is that I recognise there are questions
about whether or not there is enough accountability and I say
that here is a mechanism one could look at, which is to have a
select committee which is in a position to have a more regular
communication with the Attorney General. You say to me there may
be stuff which you cannot reveal. You are absolutely right. I
respond to that by saying, then let us look at whether it would
be appropriate to have mechanisms for doing that and what those
could be. I thought it might be helpful to refer to the ISC as
an example of how things are done. I am sorry that you do not
think it is.
Q65 Mr Tyrie: I do think that we
have quite a serious problem with the perception of your office
publicly. We have a former Solicitor General who has said that
you should publish advice. We have the current Lord Chancellor
who says, and I quote, that the role of the Attorney General in
Government "is no longer constitutionally sustainable"
and we have a current controversy raging where all public confidence,
I think, has probably seeped out of the idea that an individual
appointed by the Prime Minister may have a say in whether Members
of the Government are prosecuted. When you put all that together,
I think we have quite a serious problem, do you not?
Lord Goldsmith: Let me respond,
because in relation to the last matter you put to me before whether
I would be happy to consult the Opposition in relation to the
choice of counsel. It was an idea which had not occurred to me
and I am happy to agree with it. Did I discuss with the Shadow
Attorney General from the Conservative Party what I was going
to do in relation to that particular aspect? Yes, I did. Was he
content with the conclusion I reached? Absolutely.
Q66 Mr Tyrie: I was asking a more
general question. I have noted what you said on that other point,
Lord Goldsmith, and I have said that I welcome it very much.
Lord Goldsmith: But you raised
it again, and what I am saying is that although you put these
points forward and you make observations about what you think
the position is, I am saying that when it comes to these issues
I do discuss with Opposition spokesmen what the issue should be
and they are supportive, I believe, of the difficult decisions
which have to be made, at least from the Conservative Party, the
main Opposition party.
Q67 Mr Tyrie: My question to you,
though, was a more general one: do you think that we have got
now a serious problem of a more general type that we need to address
with respect to your office?
Lord Goldsmith: I do not. I do
not agree with the remarks you have quoted from the Lord Chancellor.
I think there is a very important issue which I have tried to
bring out before this Committee about whether you want accountability
or whether you want some distance and separation. I think that
is a key point. I have expressed my view about it. Other former
holders of this office like, I believe, the Shadow Attorney General
from the Conservative Party, take the view that that accountability
is very important.
Q68 Mr Tyrie: You are making it clear
that you completely disagree with the Lord Chancellor and that
he is barking up the wrong tree?
Lord Goldsmith: I have expressed
my view about these key issues in relation to accountability.
I have said in relation to legal advice, which is the other issue
you have identified, that the next time (if, God forbid, it happens)
there is a question of military action it would be for the Prime
Minister of the day to determine—and I have a very strong
prediction as to what would actually happen (it is not my call,
it would be his)—whether or not advice should be made available
to Parliament. I have also said that I think it is very important
that the basis of it, in any event, should be fully explained.
Q69 Mr Tyrie: It sounds as if you
are saying you are flatly contradicting the Lord Chancellor. You
think that the role of the Attorney General in Government is currently
constitutionally sustainable. In fact, you seem to be going further
than that, or implying that you are going further than that, saying
that it is really a very good arrangement?
Lord Goldsmith: I have set out
in the paper the arguments. I have also made certain suggestions
for consideration as to how things can be dealt with. I think
that is the positive side of what I have come to do. I welcome
the debate, but I do not think I have come here simply to have
disagreements with fellow ministers.
Q70 Chairman: You do recognise that
as far as the public is concerned there is a considerable difficulty
in establishing or re-establishing confidence in the notion that
somebody who is in a senior political position (and by definition
is a Member of the Government, committed to supporting it) is
required to make decisions in which some element of distance is
needed because they may be decisions on which he could wrongly
be influenced by his position in the Government? That feeling
is quite strong amongst members of the public.
Lord Goldsmith: It is really important
to make it clear, which I have sought to do, that my duty is to
the law and not to party politics or party loyalties, and that
is what successive Attorneys General have always said. We always
remember the one incident in the 1920s when that did not appear
to be the case. That is, as it were, emblazoned in burning lights
in the Attorney General's offices. I knew about it when someone
else took that office, almost on the first day. That is the primary
duty and that is what we carry out, and former Attorneys General,
and I believe not only that it is possible but that we do in fact
reach that conclusion. I make decisions which my colleagues do
not agree with. I tell them there are things that they cannot
do. They accept that, even though it may be disadvantageous to
the Government, to the party, that they cannot do what they want.
Everyone knows about the things I have said they can do because
that is the one big thing that is there very much in the public,
but people do not know about the things that have been said that
cannot be done.
Q71 Bob Neill: Mr Attorney, is not
the problem this, though, that despite the very best endeavours
and the best integrity of yourself and previous and successive
Attorneys General the public will never be convinced of that situation?
They will never be convinced of that situation unless either all
the advice which you give is disclosed or there is a construct
arrived at in which the person who defies public interest is not
a Member of the Government but perhaps accountable to Parliament?
It must be possible to have a construct which gives that situation,
is it not?
Lord Goldsmith: I do not believe
you would have the same degree of accountability at all.
Q72 Bob Neill: In what sense?
Lord Goldsmith: You would not
be able to summon (as has happened to the Solicitor General and
to me) the law officers to come into Parliament on so far three
occasions on BAE in both our cases, to make statements and to
answer questions.
Bob Neill: Are there no means
by which Parliament can set up officers who are able to be summoned
or who are held to be accountable through other means? You do
not think so?
Q73 Chairman: Not parliamentary ombudsmen
necessarily, but accountable to Parliament in the duties they
carry out?
Lord Goldsmith: I think, if I
may say so, the accountability is in a very different way from
actually responding directly to questions from Members of both
Houses in debates in Parliament and oral questions.
Q74 Bob Neill: I understand where
you are coming from, but the concern is this, is it not, that
ultimately somebody has to be the arbiter of public interest and
can you ever convince the public in the current circumstances,
the way things develop, as constitutional arrangements do, that
somebody who is a member of any political party can do that with
the confidence of the general public, despite your best endeavours
to do so?
Lord Goldsmith: If I may say so,
stripped to what you have actually said, it is an astonishing
proposition because the public elect politicians in order to act
for the public good and in the public interest. To say that elected
politicians—and I am not even elected—cannot be trusted
to judge what the public interest is I think is surprising.
Q75 Bob Neill: I think, with respect,
Mr Attorney, you know full well that I am using a very narrow
legal definition of the public interest for these purposes and
not a more general one. I am sure you know that.
Lord Goldsmith: I wanted to make
the point, the proposition that people can be trusted, I believe,
to be able to see what the public interest is.
Q76 Bob Neill: But you would agree,
I think, that the definition of people who can be trusted, I believe,
to be able to see what the public interest is, public interest
in relation to the person who initiates prosecutions, is a particularly
specific and important one?
Lord Goldsmith: Can we just take
it a stage further, because the only case in which the public
interest has arisen in a way which is controversial is in relation
to BAE, which was a decision by the Director and not by me.
Q77 Bob Neill: I understand that,
but a decision by the Director after you had made clear, I think
it is fair to say, your advice or your view as to what the public
interest was?
Lord Goldsmith: No, I had not.
Q78 Bob Neill: You did not tell the
Director your concerns about the public interest?
Lord Goldsmith: No, the Director
had the information. You look at me in a surprising way, but you
are wrong about this. The Director formed his view. He actually
formed his view after meetings (which I had not attended) with
our Ambassador, and of course seeing the information that I had
seen. I did not press him to reach that view. I did not even recommend
to him that he reach that view. He came forward with it.
Q79 Chairman: You reached the same
conclusions for entirely different reasons?
Lord Goldsmith: No, I did not
say entirely different reasons because national security was important,
but he came to me and he said that this was the conclusion he
had reached. This is what he believed. Of course I knew the basis
of the information, but he said that he was not pressured. He
said that this was all done perfectly professionally and I do
not think it is right to let suggestions that that was not the
case go without contradicting them.
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