Examination of Witnesses (Questions 100-111)
RT HON
LORD GOLDSMITH
QC
7 FEBRUARY 2007
Q100 Chairman: I thought you had
agreed that there was just such a distinction?
Lord Goldsmith: I entirely accept
that there is a distinction between areas which are within the
field of collective responsibility and those which are not. In
relation to those which are not within collective responsibility,
leaving aside legal advice, which is a rather special case, I
regard myself as accountable to Parliament. In relation to the
other areas, in so far as I am acting collectively with other
ministers, then we are all accountable for what we do.
Q101 Dr Whitehead: With respect,
you are not accountable to Parliament to the extent that Parliament
could do anything back to you for the information that you are
providing to Parliament by way of accountability, whereas when
you are exercising a collective responsibility role and being
held to account for that, then somebody could do something back
to you in relation to that role. It seems to me that there is
a distinction there between the two.
Lord Goldsmith: Then I am not
sure I do recognise that distinction. If I appeared to agree with
it before, I should not have done because it seems to me, if I
may say so, that when you are considering a decision independently,
not as part of Government policy, and you are considering making
that decision, the fact that you may have to stand in the House
and explain that decision under searching questions seems to me
to be a very important part of accountability.
Q102 Dr Whitehead: Bearing in mind
that in a sense that elision of roles has already been unpacked
as far as the Lord Chancellor's Department is concerned, it is
not something which might be looked at in terms of understanding
those two roles better in terms of the Attorney General's Department?
Lord Goldsmith: If by "looked
at" you mean discussing them and explaining, absolutely.
To some extent that is what I am trying to do today. But in terms
of what is the best thing to do about the role, I have been doing
the job which I have been given. Others may want to structure
things in a different way. It is not my decision whether that
happens or not. But I do want to underline, if I may, just two
points quickly. One is that the point has been made this afternoon
that there are aspects of what I do which have been controversial.
That has always been the case with Attorneys General. If one looks
back over history it has always been the case, and it is not at
all surprising because the decisions which Attorneys General get
called upon to make are often in the most difficult and controversial
circumstances. The second point I want to make is that notwithstanding
all of that, both the courts and Parliament keep giving responsibilities
to the Attorney General and recognising that those can be carried
out in a proper way. So, for example, it was Parliament which
gave to the Attorney General the responsibility for the appointment
of special advocates in issues which this Committee has looked
at. It is to me that a judge in Northern Ireland recently gave
the responsibility of looking into something which concerned him.
That is something in which Peter Hain and his Department were
involved. He said explicitly that he was providing it to me not
as a minister but as a guardian of the administration of justice,
and that is what is taking place.
Q103 Chairman: You seem to be arguing
that you needed a serious government department not because you
had identified a number of functions which would be better carried
out in the Attorney General's office but because only if one had
a serious department could one have enough people at the top to
give the range of advice on the general range of government that
you would find appropriate. I find that a very odd argument for
having a big department.
Lord Goldsmith: I never said "big";
you picked up on the word "serious". The Attorney General's
office was once simply described as "the Attorney General's
Chambers". I think it is right that we should be resourced
sufficiently to be able to do the job.
Q104 Chairman: You just want a few
more people? You are not actually arguing that there are functions
currently done elsewhere which might usefully be gathered under
the Attorney General?
Lord Goldsmith: I think if one
is looking in an area in which I already act at redistribution
of functions it probably is a good moment to look at whether there
are other functions which would be better performed in different
places, but that is a matter, I think, for Government to consider.
Q105 Chairman: You are very reluctant
to put a bid in for any functions at all?
Lord Goldsmith: I am not the slightest
bit reluctant, I am just not sure this is the place to do it.
Q106 Chairman: There is something
else Dr Whitehead mentioned which I wanted to pursue with you
briefly, which are the changes that have occurred from the 2005
Constitutional Reform Act. Many people argued at the time that
the change in the role and nature of the Lord Chancellor profoundly
affected the availability of commitment to the Rule of Law within
Government. Both the fact that he was no longer a judge and the
fact that he might in the future not be a lawyer, for example,
were cited as reasons perhaps to regard the role of the Attorney
General as taking over some of the responsibility the Lord Chancellor
previously had in Government. The Lord Chancellor is given a specific
responsibility and an oath to swear to in this respect, but you
still feel, notwithstanding that, that those changes require or
almost automatically bring about greater significance in the Attorney
General's role?
Lord Goldsmith: As you rightly
say, it was others who first made that point. Lord Goodhart, for
example, made that point in the debates on the Constitutional
Reform Bill. It is not the responsibility of the Lord Chancellor
to advise on the law and he does not tender legal advice to the
Government. It is very important that the Lord Chancellor role
is there, and traditionally it always has been, but I have always
regarded a part of my role as upholding the Rule of Law. I am
the one who gets called upon to give advice. I am the one who
has overall responsibility for supervising Government litigation
in which issues about the Rule of Law constantly crop up. Parliamentary
counsel raises concerns about the propriety or legality of proposed
legislation to me, not to the Lord Chancellor. I advise the Legislative
Programme Committee on whether there are issues of propriety or
not. So I think the role is already extremely important in terms
of the Rule of Law, but I also think—and I think this was
the point being made by Lord Goodhart and by some others—that
if we were to move to a situation (and we are now in a position
where this could happen) where the Lord Chancellor was no longer
a lawyer or a senior lawyer, I freely confess I believe it would
be important that there would remain a senior lawyer at the heart
of Government and the only other candidate for that is the Attorney
General. The Attorney General will have to continue to be a lawyer,
and indeed a senior lawyer because it is a serious legal job which
has to be done. I think that does have an impact and, going back
to your question about bids, it does impact on questions about
where certain responsibilities might at some stage more naturally
fit.
Q107 Chairman: When I was first elected
to this House both the Attorney and the Solicitor General were
in the House of Commons. Now the Attorney is in the Lords it looks
unlikely, does it not, given the difficulties of sustaining legal
practice as a barrister at the appropriate level while doing a
full-time job as a Member of Parliament, that in future there
are going to be strong candidates for the position of Attorney
General in the Commons? Are we resigned to the fact that it is
now permanently a Lords appointment and more often than not somebody
brought into the Lords because they are given that appointment?
Lord Goldsmith: I was not brought
into the Lords because I was given this appointment, I had been
in the Lords for two years before I was given this appointment,
just for correction of that doubt, nor indeed was Gareth Williams,
who preceded me. It will be for Prime Ministers of the day to
determine where they can find the people to carry out this role.
I recognise the point you make about the difficulty of carrying
on a legal practice with the present demands on a constituency
MP and that may well have an impact on the size of the pool which
would be available. That is why, if I may say so, I think it is
important to recognise first of all that I am privileged to be
a Member of the House of Lords and I am accountable there. I think
strengthening accountability through to the Commons in any way
in which that can be done is something which is desirable and
having set out some ideas about that and some ideas about the
possible change to the oath, or perhaps even a statutory responsibility
to try to make very clear what it is the Attorney General does,
I had hoped to address some of the questions about the way in
which the role can be performed in the future.
Chairman: Mr Howarth has a further
point he wishes to put to you.
Mr Howarth: On that point, I note
that the number of barristers in the Commons is apparently now
down to 34, contrary to the popular belief that it is somewhere
over 600.
Bob Neill: The number of Silks
is even less!
Q108 Mr Howarth: If I could go back
finally to the point about your role as superintendent. I do not
fully understand how this works, because you described it as a
largely consensual relationship, perhaps supervisor in a general
sense but nevertheless fairly equal, but there is inherent in
the role of the Attorney General a hierarchy, that you have powers
which are given to you and not to the DPP or to the Director of
the Serious Fraud Office. For example, there are statutes where
your consent is required for prosecution, and you have the power
to stop any prosecution by nolle prosequi?
Lord Goldsmith: Yes.
Q109 Mr Howarth: I was just wondering
whether there is any occasion, in your experience, in your relationship
with the Directors where you have had to refer to those kinds
of powers?
Lord Goldsmith: In relation to
consent, obviously, because if it is for me to consent then I
have to consent. So that obviously is referred to. In terms of
using the nolle prosequi power, I cannot recall any instance
where with either of the Directors I have, if this is the way
of putting it, threatened to use that power, no. You are quite
right that ultimately I do have that power. But could I just go
back, because we are just picking on one particular aspect of
superintendence. Superintendence is much, much wider than this.
There is the issue of looking at policy in relation to the CPS
and I am constantly meeting with the CPS, with their Chief Executive,
with the senior people, looking at the way prosecutors are being
trained, how they are dealing with cases generally in the magistrates'
courts and policy in relation to the way the job is done is a
constant matter of concern. We were picking up on cases, not cases
with my consent, cases which are sensitive or difficult where
they may come and say, "We're keeping you informed about
this case," and I am saying that what tends to happen there
is that I will either say, "Thank you very much. There is
no issue with that," or raise questions with them, and then
that will more normally than not lead to a discussion about it
and the reaching of an agreement rather than the exercise of control.
Q110 Mr Howarth: So if you were asked
the Jeremy Paxman question, "Did you threaten to overrule
him?" you would answer, "That's not the way it works"?
Lord Goldsmith: It is not really
the way it works with the two Directors, no.
Q111 Chairman: Thank you very much,
Mr Attorney. We have had some very interesting exchanges. I do
not expect you to withdraw your previous offer to come to the
House of Commons select committees more often than hitherto
Lord Goldsmith: No, not at all.
Chairman: And I have both the hope and
the expectation that we shall see you again. Thank you very much.
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