Examination of Witnesses (Questions 120-139)
RT HON
LORD MORRIS
OF ABERAVON
KG QC AND RT
HON LORD
MAYHEW OF
TWYSDEN QC
28 FEBRUARY 2007
Q120 Mrs James: There are other methods
of securing accountability, for example by making an office holder
an officer of the House of Commons, similar to the Ombudsman or
Comptroller and Auditor General. Would this be possible for the
office of Attorney General?
Lord Morris of Aberavon: I am
not aware that the Ombudsman can stand at the bar of the House
and answer questions, and that is the crucial test. You never
know how it is going—whether you will do well or badly.
It was Lloyd George who said that he would never make a speech
in the House of Commons without having butterflies in his stomach
and every time I had to face the House of Commons I always had
butterflies in my stomach because there is no better discipline.
There is my former PPS smiling and he knows—we were always
glad to have it over!
Lord Mayhew of Twysden: That is
right, and for very good reason too, because in my experience
the sharpest darts when you are at the despatch box tend to come
from behind, and people take very seriously—and if I may
presume to say I am sure it is the case today in the House of
Commons—their responsibilities for the Rule of Law and for
all constitutional matters, whether they are members of a government
party or not. But I think on one occasion when I came to the House
of Commons and volunteered a statement as to why, on the grounds
of the public interest, the Director of Public Prosecutions for
Northern Ireland had decided it was against the public interest
that two police officers should be prosecuted for the serious
offence of perverting or attempting to pervert the course of justice,
and the reasons were deeply embedded in national security. I came
before the House of Commons before I was asked to do so, I made
a statement, I was very properly grilled for something like forty
minutes, and the matter never came to back to the floor of the
House of Commons or the business of the House of Commons by any
of the means by which it could have done, and I think that can
only be explained on the basis that the House thought they had
had an honest decision, an honest explanation of a difficult decision,
and they were satisfied by it. Now, I think it would have been
very difficult had there been any other arrangement for that result
to have been achieved. Having the organ grinder there is absolutely
essential; monkeys would have been regarded as inadequate, I think.
Chairman: Had we existed at the
time you would have been given a very rough time in this Committee
on the same subject, but I accept it is not the same thing.
Q121 Mrs James: Quoting Lord Lester,
who spoke in the House of Lords on 1 February, he said: "as
elsewhere in the Commonwealth, parliamentary accountability for
the Attorney and the DPP could easily be secured by having an
elected Cabinet minister of justice". Do you agree or disagree
with that?
Lord Mayhew of Twysden: I am familiar
with the quote, of course, and I looked at the schedule which
was attached to the Attorney's submission to this Committee in
which he very helpfully set out the various arrangements in most
of the Commonwealth countries, and it seemed to me that what Lord
Lester was saying was more admirable was found in Australia and
Canada and New Zealand, to have the head of the prosecution service
the Attorney General who sometimes doubled up as the minister
of justice, he was far more involved in political matters than
the Attorney General is here, and I could not see how that married
up with Lord Lester's earlier remark in the same debate, the same
speech, in which he had said how can it be possible for the Attorney
General to give, let us say, his consent in a quasi judicial matter
to the prosecution of a particular defence when he is so concerned
with political matters? There are two horses being ridden there
and it seems to me they are going in opposite directions.
Lord Morris of Aberavon: I think
he defeats himself in his second comment.
Q122 Mrs James: Lastly, given that
most legal advice to the Government is in practice given by civil
servants and lawyers, for example, relating to compliance, etcetera,
does the Attorney General need to be a politician at all?
Lord Morris of Aberavon: I think
he does if you accept the Silkin Test of accountability. He is
the head of the Treasury solicitors, they are answerable to him;
he has standing counsel both in civil matters and crime; and he
has his own Treasury devil who is a very senior lawyer, and he
has to take the broader view which includes the national interest.
For all those reasons—and many, many more and I will not
detain the Committee—I think it would be a sorry day if
we lost the accountable person answerable to Parliament, and I
agree with Lord Mayhew preferably without any disrespect to present
holders or previous holders of the office, to the House of Commons.
It is the House of Commons that we should aim to get someone answerable
to.
Lord Mayhew of Twysden: I agree
with that, if I may add. It goes back to the point about accountability,
which I do not want to dwell upon in any superfluous way, but
I do not see how he can be accountable to the Parliament unless
he is a member of it, and I think it is absolutely essential for
public confidence reasons that he should be. I had the advantage
of reading the transcript of your questioning session with the
Attorney on 7 February and I agree, if I may say so, and I do
say so, strongly with the way in which he dealt with that particular
question. I will not take time but to take one example, if he
has got to argue for more of resources for the Crown Prosecution
Service, for example, he can do so much more persuasively with
ministerial colleagues, it seems to me, than if he is somebody
who is completely detached. I endorse everything the Attorney
said really in answer to that general point.
Lord Morris of Aberavon: I would
agree and go further, Chairman. Now, I think since Lord Mayhew's
time, there is this tripartite machinery of the Lord Chancellor,
the Home Secretary and the Attorney General to look at justice
considerations generally, the speeding up of justice and bringing
people before the courts, and certainly in my time and I have
no reason to believe it has changed, that joined-up government—to
use a phrase which has now gone out of fashion—certainly
was working and working well, but he had to be a politician.
Q123 Mr Tyrie: You said a moment
ago, Lord Mayhew, that you do not think that an institution can
be accountable to Parliament unless it is represented in it. I
was running examples through my mind to see whether I agreed with
that idea. Does this mean that, for example, you would oppose
independence of the Bank of England on the grounds that a decision
as serious as the setting of interest rates, which was once directly
the responsibility of the Chancellor, now lies in the hands of
the Governor, who is not a member of Parliament and who is accountable
only to the—albeit powerful—Treasury Select Committee?
Lord Mayhew of Twysden: No, I
would not oppose that; I thought it was a very proper reform.
My point is that I believe the House of Commons, and the House
of Lords too, would not regard it as sufficiently accountable
if the man responsible for exercising jurisdiction over the Prosecution
Service in this country, for example, was not able to come and
justify himself or herself in person.
Q124 Mr Tyrie: But just to pursue
the parallel, that is exactly what the Governor does when he comes
to justify the decisions he has taken on the Monetary Policy Committee.
Indeed, he has a statutory responsibility to show his accountability
to Parliament in that way.
Lord Mayhew of Twysden: Yes. I
do not think he does it in the Chamber of the House of Commons.
Q125 Mr Tyrie: In a Select Committee.
Lord Mayhew of Twysden: In a Select
Committee, and of course the Attorney can be brought before a
Select Committee—and has been. I just do not think it would
be regarded as sufficient accountability if he is not able to
be brought or to come of his own volition to the Chamber of the
House of Commons. It is a matter of balance and a matter of degree,
but that happens to be my view.
Q126 Mr Tyrie: I am really asking
why.
Lord Mayhew of Twysden: Because
I think that the controversiality of his decision and the fact
that it impinges upon individual liberty is such that most members
of the House of Commons in my time would have regarded it as very
much second best to be able to have him only in a Select Committee.
Q127 Mr Tyrie: And you think those
decisions are of greater importance than the setting of interest
rates?
Lord Mayhew of Twysden: I think
they are seen, and properly seen, as more important. I agree they
are quite different in character, and the other is, of course,
very significant in its effect upon people's lives but not quite
so significant as can be brought about by a prosecution or a decision
not to prosecute.
Lord Morris of Aberavon: The liberty
of the subject is involved. Certainly in my time in the House
of Commons that would have been regarded as a very important matter
and the Attorney or his Deputy may have to reply to an adjournment
debate on a particular case. I had to do that in the well-known
case of Owen Oyston, I think, in Lancashire, and it was very important
that there was somebody there to explain what had happened.
Q128 Bob Neill: Can I follow up that
last point before I move on? Prior to Scottish devolution there
were instances, albeit I suspect more by accident than design,
when there were not Scots lawyers, often Scots law officers, in
the Commons and sometimes in neither House. Did that fundamentally
undermine their accountability?
Lord Mayhew of Twysden: I do not
know how things were viewed in Scotland.
Q129 Bob Neill: But they were carrying
out essentially the same roles.
Lord Morris of Aberavon: The basic
point is this: that the Scots could not get a reasonable lawyer
elected to the House of Commons!
Q130 Bob Neill: I understand why
it happened and I am glad that is not a problem south of the border—
Lord Morris of Aberavon: If they
could, they would!
Q131 Bob Neill: I have that point,
Lord Morris, but did it in practice make them so significantly
less accountable?
Lord Morris of Aberavon: When
it first happened the cry late at night is that we send for the
Lord Advocate knowing the Lord Advocate never had a seat in the
House, but it is very much second best. Now, of course, he is
a member of the Scottish Executive.
Q132 Bob Neill: Indeed. I accept
it is different now. So it was second best. The other point I
wanted to come back to is the point you raised, Lord Morris, about
the tripartite machinery. We have seen a change in the constitutional
position of one part of that, the Lord Chancellor, in the 2005
Act to the point that he need not even be a lawyer, and the question
is should there be a lawyer at the heart of government. I wonder
what thoughts both of you have as to the implications of the change
of the Lord Chancellor's role for the Attorney's role?
Lord Mayhew of Twysden: I rather
agreed with what the Attorney said in his memorandum to you or
to Birmingham Law School, I cannot quite remember which, that
there was room now for a statutory statement of his responsibilities,
and in particular in relation to the public interest and upholding
the public interest he makes the contrast with his own position
which is non statutory in that regard with the 2005 Act and the
Lord Chancellor. I thought there was mileage and merit in that
but I do not think that the change in circumstance is sufficient,
for example, to warrant his going as of right every time to Cabinet,
something we have already discussed.
Q133 Bob Neill: He did say that in
particular he thought that the role of the Attorney upholding
the Rule of Law, which you alluded to, Lord Mayhew, was underestimated
in the new arrangements. Should that be codified in some way?
Lord Mayhew of Twysden: It may
not be underestimated; perhaps it is understated in the sense
that we have already identified. He also went on to say that there
is plenty of scope for more education in what the Attorney does,
and I think that is absolutely true. I think there is a terribly
damaging public fashionable mantra now that if somebody is confronted
in public life with a contrast and a conflict between his public
duty and his private or his political party interest he cannot
be trusted to do his public duty. I think that is a terribly damaging
and quite unjustified fashionable mantra and I think on the positive
note it is highly desirable that there should be a much greater
public education on the matter. Secondly, I think it is very desirable
that nothing should be done to feed that on the basis that in
some quarters is suggested for the Attorney's role at the moment
in the light of what is described as "recent events".
Lord Morris of Aberavon: Could
I add and agree with that that in the Constitutional Reform Act,
and I think the Attorney in his evidence to you, Mr Chairman,
was referring to that, under Section 3, the Lord Chancellor, "other
ministers of the Crown and all with responsibility for matters
relating to the judiciary or otherwise to the administration of
justice must uphold the continued independence of the judiciary".
I certainly would not object to spelling out the name of the Attorney;
whether it adds anything when the words "other ministers
of the Crown" are there is maybe doubtful. Likewise, the
code of conduct for ministers: "The code should be read against
the background of the over-arching duty on ministers to comply
with the law, including international law and treaty obligations
to uphold the administration of justice and to protect the integrity
of public life". Well, there are two limbs there which cover
the Attorney General, he being a minister of the Crown.
Q134 David Howarth: You have mentioned
several times the twin concepts of the public interest and the
Rule of Law as being key aspects of the Attorney's job and, Lord
Mayhew, you also mentioned the fashionable cynicism about people's
ability to carry out their public functions in a political context.
Do you think there might have been a serious change here in the
relationship between the Rule of Law and the public interest in
the following way: that before that cynicism was prevalent the
Attorney's function in upholding the Rule of Law would strengthen
public confidence in the Attorney's role in upholding the public
interest, that there would be a positive relationship between
the two, but now, because of cynicism and because of recent events,
it works the other way around, that because the Attorney is involved
in political decisions that undermines confidence in the Attorney's
attachment to the Rule of Law itself? I refer to the advice on
the legality of the war in Iraq and to more recent events on prosecutions
and refusals to prosecute.
Lord Mayhew of Twysden: Well,
I do not think that his responsibilities as guardian of the public
interest are essentially separate from his responsibility to secure
the upholding of the Rule of Law; I think it is part of the same
thing. The Rule of Law requires that, for example, in the case
of prosecuting decisions the public interest should play a part
in the decision so I do not regard there as being a dichotomy
here, though sometimes it appears to be believed that there is.
I am not able to judge, to measure, what is described as the prevalent
mood of public cynicism. I have referred to a fashionable mantra
but I actually think that the British public are pretty shrewd
about these matters and I do not think they do take their considered
opinions from the size of the headline, if I can put it like that.
So I would be very reluctant and saddened, indeed, to find a constitutional
arrangement which has stood the test of time for a very long time
indeed overturned on the basis of, well, let's call them "recent
events" which do constitute no more than a short run of controversial
decisions. I know that you are to hear the Lord Chancellor shortly
and it has been reported that he said that the role of the Attorney
General is no longer constitutionally sustainable. That is a fine
sonorous phrase and I am sure you will be asking him what it means,
and what it is in recent events that has brought it about.
Lord Morris of Aberavon: I would
be very interested too. The Lord Chancellor was my Solicitor General
and I never heard a dickey bird about that when he was Solicitor
General, neither with Mrs Harriet Harman after my time who now
seems to have doubts about certain factors. But the role of the
Attorney has always had controversies. I had a comparatively minor
one at the very beginning and then everything subsided after one
long weekend. I am rather old, and old enough to remember Manningham-Buller
being dragooned down to the House and facing immense controversy
regarding something which had happened in west Africa. The Khalid
case again was perhaps even more controversial, which you may
or may not have read, and it is worth reading. One never knows
what happened. I seem to remember the case, and I have not read
it anywhere, it is just youthful recollection, of a Russian athlete
in the middle of some important international negotiations who
was charged with shoplifting in Oxford Street—there is a
whole range of matters which can cause controversy when you have
a very quiet patch and then something of that kind erupts; it
is nothing new in my view, and unless you start off with a mantra
that you cannot trust an active politician to hold the office
of Attorney General, which may well be a point of view, then I
think you have to wear it and prefer the fact that whoever does
the job and has done it for 500 years and more with all these
flaky bits can do it and it should be done in this way because
the biggest prize is accountability to Parliament.
Q135 David Howarth: I have one final
question which arises out of the previous discussion about the
effectiveness of accountability to Parliament, which I think is
your main theme. Would you agree that the effectiveness of that
scrutiny in the Commons in terms of upholding the Rule of Law
side of the Attorney's job depends on the commitment of members
of the House of Commons to the value of the Rule of Law, and that
if members of Parliament no longer collectively have the same
commitment to the value of the Rule of Law that will have a knock-on
effect on scrutiny of the Attorney's role on that side of the
Attorney's job?
Lord Mayhew of Twysden: Yes, it
would, and very lamentable it would be, but if they were so indifferent
to the Rule of Law as the question supposes they would soon put
paid to any alternative arrangement that might have superseded
the present one. If I could just add a word or two to the last
discussion, I do wonder what is the purpose of having principles
of public life to which everybody adheres if we are going to adopt
a course which would imply that really it is not reasonable to
trust anybody actually in public life vested with heavy responsibilities
to adhere to those, starting with the Attorney General. It does
seem to me to be a curious approach.
Q136 Dr Whitehead: Is there not,
though, what one might call a perceptual tension, and maybe a
perceptual tension that has increased in recent years, but nevertheless
a tension which is inherent in the fact that, on the one hand,
the Attorney General must be seen to be defending the public interest
and, on the other hand, providing legal advice to government where
the perceptual tension may exist in terms of the legal advice
being seen as how to get the Government out of a problem, rather
than speaking truth to government in the interests of public interest?
Lord Morris of Aberavon: Well,
there are two distinct things here. The lion's share of the Attorney's
time is taken as principal legal adviser to the Government. Basically
he is an in-house lawyer as some of our major corporations would
have, and I am confident that all have done their best to give
the best possible advice to the Government and they have the advantage
of having their own counsel, they can go out to independent counsel
if necessary, the Treasury Solicitor's department—they can
give the best advice they possibly can. Now, that is the Government's
legal adviser and in that part he is a minister, full stop, but
on the public interest side on a decision to prosecute, or matters
of chancery or whatever, he is there as the guardian of a public
interest, and a whole host of things which I will not weary the
Committee with which have been spelt out by the Attorney in his
memorandum where it is quite a different role completely to his
role as legal adviser, and it was pithily put, of course, by Shawcross
many years ago, which dealt with the situation of his role in
that capacity—quite independent, not as a minister, in an
ordinary sense but rather an independent person.
Lord Mayhew of Twysden: But I
agree with Dr Whitehead's point that there is a perceptual tension,
certainly, and that is why the true position as a matter of education,
as we have touched on already, is so important. I think it can
be made more vivid, however, by reference to past decisions of
different attorneys. What is described as the prevalent rule of
cynicism is based upon the recent headlines but if the public
are going to be presented with a major change in our constitutional
arrangements of this character and in this context then they will
want to look at the thing much more in the round and go back over
past decisions. If I may refer to the case of Westland where there
was some local difficulty, the Attorney General at that time,
with public knowledge, Lord Havers as he became, wanted, entirely
properly, in due course to become Lord Chancellor but it did not
prevent him from saying that he would put the police into No 10
unless there was a proper inquiry into what had taken place. That
is rather a vivid illustration, so it seems to me, and I have
some reason to recall it! There was another occasion, a very unhappy
one, when it fell to me to authorise the prosecution of a Conservative
backbencher but it did not occur to me, nor should it have done,
that this should be influenced in any way by partisan considerations.
There are other illustrations to be made and the public and those
who are advising the public will really want to look at the thing
in the whole. By saying that I do not want to give any indication
at all that it is my view that so-called recent events have undermined
the workability of our present arrangements; I do not think they
have.
Lord Morris of Aberavon: I would
agree. My example would be the war crimes prosecution. I had spoken
against the Bill, voted against the Bill, was asked by many journalists
before the election what my approach would be, and I made the
obvious point: "This is the law of the land and if it comes
to me to decide whether to prosecute or not then I will look at
it with all the care that is necessary in any matter where the
Attorney's consent has to be obtained", and on that particular
case my wish, as I said earlier, would have been, had I the time,
to prosecute myself despite the stance I had taken, and I had
taken the stance on the basis of it was too late and we would
only get millions, and millions we got, too, but it did not inhibit
me at all in reaching a proper decision, evaluating I think over
a period of three days and talking to leading counsel, as regards
whether a prosecution should take place.
Q137 Dr Whitehead: You mentioned
earlier Lord Lester's two statements in the House of Lords on
1 February. Taking the first one which is the statement concerning
the Attorney General being a member of the government and their
most senior legal adviser in independent law guiding the public
interest, he said "How can he claim credibility to act quasi
judicially when he plays a highly political role at the heart
of government?", and I think you have alluded to that tension
but in responding to Lord Lester's question, could it not be the
case that perhaps playing a political role in the heart of government
and having the credibility to act quasi judicially and defending
the public interest, actually the outcome of the Attorney General's
deliberations might be, as it were, to be unfair to his own side
in order to demonstrate precisely that independence and defence
of the public interest?
Lord Mayhew of Twysden: All institutions
are staffed by human beings and therefore are the subject of the
fallibility of mortality, but I think that somebody who comes
with the background that a lawyer will bring to the job ought
to be able to distinguish, and I think has shown that they are
able to distinguish, between what are proper considerations and
what are not and what is a proper balance and what would be an
unjustifiable one. I understand the point.
Q138 Keith Vaz: You have already
told the Committee, Lord Morris, that you disagree with the reported
statements of the Lord Chancellor that the role of the Attorney
General in government is no longer constitutionally sustainable.
Do you also disagree with Harriet Harman's statement that it was
a contradiction in terms to have an accountable office holder
who was unable to publish the advice that he had given to the
people to whom he was accountable?
Lord Morris of Aberavon: On the
first point I will read very carefully the explanation the Lord
Chancellor gives in elaborating that comment which, frankly, I
do not understand—
Q139 Keith Vaz: Careful, he is behind
you.
Lord Mayhew of Twysden: I hoped
he was!
Lord Morris of Aberavon: Be that
as it may, I am very relieved you are here! On the Harriet Harman
point, again, that is news to me. Let me explain. Lord Mayhew
and I appeared before the House of Lords Select Committee on the
prerogative of going to war and the need to have parliamentary
consent, and we both came down that Parliament should be consulted
and we put forward the suggestion which was accepted that there
should be a convention of the constitution, and in my case that
should be endorsed by each party leader before an election in
order to ensure that the convention subsisted; that before committing
troops there should be the consent of the House of Commons. But
I put it forward there in evidence, and I have the evidence here,
that I likened the relationship of the Attorney and the Government
to that of a family solicitor and a client and I would suspect,
I hope rightly, that most of you would not wish to have the advice
of your family solicitors broadcast in the market place.
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