Examinatin of Witnesses (Questions 144-159
RT HON
LORD FALCONER
OF THOROTON,
QC
28 FEBRUARY 2007
Q144 Chairman: Lord Chancellor, welcome
back again, only a week later from your last visit. We will get
on to the constitutional sustainability of the office of the Attorney
General shortly but at this stage perhaps I might ask you one
or two questions that were exercising the previous witnesses.
It was that quotation from the ex-Solicitor General, the Minister
of State in your Department, that it was a contradiction in terms
to have an accountable officer who was unable to publish the advice
he had given to the people to whom he was accountable. Do you
agree?
Lord Falconer of Thoroton: I do
not agree with that. The right position is that in very many cases
it will be inappropriate to disclose the advice that has been
given because you want to be sure that government departments
and ministers take advice. As somebody pointed out, if there is
a chance that the advice will immediately be published, that will
discourage people from time to time from taking advice. You also
need to have a conversation very frequently with your lawyer as
to what the position is. You want to be free to have that conversation
without embarrassment. I think there are certain occasions where
it is absolutely critical that the advice is published because
the consequences of the advice are so significant and one of those
is obviously in Iraq where the Attorney General did publish a
statement of what his legal conclusions were before the decision
was made by the House of Commons on the use of force against Iraq.
I agree with what the two Attorneys just said, namely that generally
you should not publish the advice. That should be the norm. There
are litigation considerations in relation to it as well. I do
not know if you have had a chance to read what Lord Bingham said
in a recent lecture. He is saying, where there are very big issues
like war, it may be that you should publish.
Q145 Chairman: Do you think, as David
Pannick suggested, that the Attorney should have the power himself
to decide that it is appropriate, even in circumstances when his
client so-called, the Prime Minister, did not think so but Parliament
might well have a very proper interest in the advice he was giving?
Lord Falconer of Thoroton: No,
I do not. If he is giving advice to the executive, ultimately
it is the executive that decides, but there is an issue about
his role in giving advice to Parliament as well. There has been
a debate going on for quite some time about what is the precise
best arrangement for the Attorney General. I very much welcome
your Committee looking at this because I think we need to have
a moderately open debate. I make it clear that I do not come saying
that the government has proposals in relation to change. If you
look at Professor Jowell, David Pannick, Lord Bingham, Lord Goldsmith
himself in relation to a lecture he delivered last year, they
are all raising questions about the precise role and function.
I am extremely keen that we should be able to participate in that
debate. On the question about should the Attorney have the choice
himself whether he publishes or not, there will be times I think
in which Parliament itself will want advice on issues. The Attorney
advises both Parliament and the Executive from time to time. I
think we need to consider the extent to which the Attorney giving
Parliament advice is an appropriate course where, for example,
Parliament then gets a definitive view itself on particular issues.
Q146 David Howarth: Going back to
the way Lord Morris put it, that if there was complete disclosure
there would be disclosure effectively of the instructions that
were given to the Attorney, the facts as the client sees them,
even if the instructions themselves were not disclosed, it is
usually very easy to reconstruct those instructions from the text
of the advice. One of the things lawyers do is try to work out
from what the other side is up to what the other side thinks the
facts are. Is not the point in this particular case that the public
should know what the facts are in the government's mind at least
in those cases which are not a matter of immediate litigation
but where the issue is more a political one than a commercial
one? The very essence of political debate is what did the government
think the facts were, for example, in the case of the war in Iraq.
Lord Falconer of Thoroton: Yes,
of course Parliament and the public should know what are the facts
upon which the Government is operating. It is not just in relation
to issues like war in Iraq; it is also in relation to issues such
as are we discriminatory under the law in breach of various directives
by having differential ages at which people can retire. There
is no difficulty in relation to either of those issues—this
is overstating it and putting it too crudely—in Parliament
summoning the relevant minister to Parliament and saying, "Tell
us what the position is in relation to weapons of mass destruction.
Tell us what the position is in relation to whether you think
it is discriminatory to have differential ages for retirement."
There is no difficulty in getting the facts on which legal advice
may be required. If you are saying that you need to be sure the
same facts are being given to the lawyer—
Q147 David Howarth: Yes, that is
the point.
Lord Falconer of Thoroton: If
the lawyer has been told one thing and Parliament has been told
another, that would be wholly wrong, but I do not think that is
perceived to be a particular problem.
Q148 Mrs James: I want to turn to
the accountability of the Attorney General. We had very interesting
responses from Lord Mayhew and Lord Morris on this issue. Should
the Attorney General be a member of the House of Commons and,
if so, are there any potential consequences for the accountability
and independence of that post? Conversely, would it help or would
it be better if he was a member of the House of Lords?
Lord Falconer of Thoroton: The
first question is what do you think the Attorney General should
do. The Attorney General currently gives legal advice to the government
and superintends the prosecution services; he has the public interest
role which he describes well in the material produced, and he
does some ministerial functions, in particular in relation to
the criminal justice system. With those ministerial functions,
it is impossible for him not to be a member of one or other House.
He has to be accountable for those ministerial functions. If the
Attorney General instead does legal advice and the superintending
prosecution and the public interest roles only, which are things
where instead of doing it on a basis where there are political
choices to make but there are only legal choices, I think there
are two possible models, one where he is not in Parliament and
not accountable because he is perceived to be separate. The other
is where he is, in Parliament, as long as he is the Attorney General,
in which case he is answerable for issues like legal advice or
making decisions about prosecutions, but it is a different sort
of accountability to normal ministers. The first question is what
do we want the Attorney General to do. If it is not to include
traditional, ministerial functions, I think the Committee should
address the issue: should he be in Parliament or not? In some
ways being out of Parliament gives him greater separation from
the politicians. Being in Parliament makes him accountable, makes
him part of the group and to some extent he is superintending
them.
Q149 Mrs James: Interestingly, the
two previous Attorneys General were quite equivocal about this.
They saw it as very important that it remained as a function within
the House of Commons. Given that most legal advice is given to
the government by civil servant lawyers et cetera, do you think
the Attorney General needs to be a politician at all?
Lord Falconer of Thoroton: It
is not to do with the current Attorney General; it is to do with
the change in the times. If you are doing ministerial things and
those things that are not party political, if you take away the
ministerial things, in some ways it would be better that he or
she was not a politician because there would be no doubt in people's
minds, but what you would lose would be the accountability. You
would not be able to say directly in the House of Commons or in
the House of Lords, "Why did you give this advice? Why did
you decide this or that?" The precedent question is do we
want the Attorney General to be a politician or not.
Q150 Mrs James: Where do you think
that debate should be had then?
Lord Falconer of Thoroton: I am
completely neutral in relation to this. Part of the debate involves
this Committee expressing views in relation to it. We need to
debate it and I would like to make it clear I do not have a view
one way or the other in relation to that.
Q151 Chairman: The two former Attorneys
who were in earlier did not take your model and distinction between
the independent functions and the ministerial functions on the
basis that it is the ministerial ones they need to be accountable
for in Parliament and not the others. They both advanced cases
of functions in relation to prosecutions, for example, for which
they had been accountable and thought it right that they were
accountable. They mentioned specific cases where they had adjournment
debates about decisions to prosecute or not to prosecute. Do you
disagree with them about that or do you think it less important?
Lord Falconer of Thoroton: I am
speaking to some extent from my own experience as being Solicitor
General. I know that totally different considerations would apply
to issues such as should a prosecution be stopped, which is really
where the big issue always arises. Those issues had to be dealt
with in a completely objective, non-party way, doing it in a quasi-judicial
way. I see a very fundamental difference from that role to the
role of how we are getting on in bringing in persistent young
offenders and speeding up the system. People are pressing us persistently
in relation to that. I see a difference between being asked about
a particular decision like that, which is like a semi-judicial
role, and a political decision. A judge comes to a decision on
the basis of what are moderately well defined parameters and in
accordance with his own proper view of the facts. The idea that
he should be questioned about why he came to that particular decisions
feels a totally different sort of issue from "How are you
getting on in bringing more criminals to justice?".
Q152 David Howarth: Might we turn
to an area where at least at the perception level there might
be a serious problem in the political role of the Attorney General?
The Attorney has the power to stop any prosecution and in some
circumstances the Attorney's specific consent is necessary for
a prosecution. What about the case of potential prosecution of
ministers, the Attorney's fellow ministers? Is it not almost impossible,
especially in this cynical age, to stop the perception that there
might be some bias in the way that decision was reached, even
though it might well have been reached perfectly properly and
quasi-judicially?
Lord Falconer of Thoroton: Those
decisions obviously have to be made in accordance with the law
and that means applying proper considerations. Every Attorney
General would obviously accept that.
Q153 David Howarth: As you know,
the problem with that reply is that that discretion is unreviewable
under the Buring doctrine so there is no judicial accountability;
there is only political accountability.
Lord Falconer of Thoroton: It
has to be done in accordance with the law. There is political
accountability. That is correct. I would not completely accept
that those decisions are unreviewable by the courts. I suspect
that there is a vestigial jurisdiction in the courts to review
them. Somebody has to make those decisions. The way that politics
have changed means that one needs to be much clearer now about
the roles that individually people perform. That is in part what
motivated the changes in relation to the role of the Lord Chancellor,
where the idea of having a judge in Cabinet who was also Speaker
of the House of Lords, which was not causing I do not think any
particular public confidence difficulties, was something that
was not, I believe and believed at the time, sustainable in the
long term in the sort of climate that currently exists.
Q154 David Howarth: Would it not
be better in this type of case specifically to have a different
system? Other countries have experimented, perhaps not happily,
with ideas such as special prosecutors. Is there not an argument,
specifically in the case of the potential prosecution of ministers,
for a different system?
Lord Falconer of Thoroton: I am
not in favour at all of the idea of special prosecutors because
I believe the Crown Prosecution Service and the other state prosecuting
bodies like the Serious Fraud Office or Her Majesty's Revenue
and Customs are completely unpolitical and are not in any circumstances
regarded as unreliable. I do not think for one moment the issue
is would a prosecution be properly looked at by the prosecution
authorities. I have made it absolutely clear that I am quite sure
that any Attorney General, including this Attorney General, will
act with complete propriety in relation to his role in that. The
question is, looking at the whole package of what the Attorney
does, if it has essentially got to be non-political, should he
be a politician.
Q155 Dr Whitehead: That brings us
back to Lord Lester's comments in the House of Lords on 1 February
where he did not distinguish exactly between the question of the
Attorney General having credibility to act quasi-judicially and
being a minister. His exact definition was, " . . . plays
a highly political role at the heart of government . . . ",
which appears to go beyond the idea that someone is a minister
but a minister of a particular kind from other ministers, in as
much as he is the person providing independent legal advice and
therefore is detached from the normal run of ministerial activity
that all that entails. How do you respond to Lord Lester's distinction?
Lord Falconer of Thoroton: Put
aside the question of whether any particular Attorney has been
highly political, which I do not accept. The role that the Attorney
General is playing is utterly different from any other minister.
I thought John Morris was entirely accurate. It was a perfectly
good analogy. You want the Attorney General to be like the family
solicitor, somebody completely trusted, but the family solicitor
is not a member of the family and that seems to me to be the critical
point.
Q156 Dr Whitehead: Presumably there
are different families. There are families and Mafia families.
Lord Falconer of Thoroton: There
are different lawyers as well.
Q157 Dr Whitehead: Whatever one may
say about the role of the family lawyer, I think there is frankly
fairly widespread feeling that the recent controversies have undermined
public confidence in the role of the Attorney General and have
certainly damaged public perception of the Attorney General's
independence. Is that, do you think, just bad luck because of
the cases that have particularly come to public attention recently,
or do you think the distinction that may have to be made between
the minister who is not perhaps like other ministers and the family
lawyer who is advising a particular family is something that the
public is simply not going to wear? Therefore, is the situation
repairable or is the damage so great that, regardless of the niceties
of the argument, reform is now inevitable?
Lord Falconer of Thoroton: I do
not accept that public confidence has been irretrievably lost.
I do accept that the public look at these issues in a different
way now from the way they looked at them in the past. In 1950
a Labour minister was alleged to have committed an act of corruption,
a man called Belcher. He received a holiday in Margate from somebody
and this was alleged to have affected his decisions. A tribunal
was set up and the Labour Attorney, Sir Hartley Shawcross, then
cross-examined Belcher to complete extinction, revealing how unreliable
and unsatisfactory he was. The criticism then was that Shawcross
was much too anti his own party. In those days there did not seem
to be a particular issue in relation to that. This is nothing
to do with the most prominent instances; it is to do with a change
in people's views and a desire for greater clarity in what people
do.
Q158 Dr Whitehead: It is interesting
that you raise the example of Lord Shawcross in as much as the
criticism was that he was unfair to his own side. In the present
climate, would you not think that it would be very difficult for
a modern Attorney General not to be unfair to his own side in
order to demonstrate that he really was independent?
Lord Falconer of Thoroton: I am
quite sure that any Attorney General would deal with it in a way
that was entirely proper.
Chairman: That is impressive confidence.
I am not sure what it is based on.
Q159 Mr Tyrie: Can I take you back
to your own remarks which both the former Attorneys General have
insisted that you comment on at length, thoroughly and comprehensively,
when you said or at least you were reported in The Guardian
as saying that the role of the Attorney General in government
is no longer constitutionally sustainable?
Lord Falconer of Thoroton: Please
look at the article. What it says is, "The role of the Attorney
General in Cabinet is no longer constitutionally sustainable,
Lord Falconer has warned" which you would have thought sounded
like a quote. That is not in quotation marks. What I actually
said was, "It is very difficult to see the status quo as
being maintainable. We need to see what are the alternatives.
I am conscious of the fact that some of the things the Attorney
General does are in fact conclusive on particular issues such
as whether a prosecution stops, which is a matter that has to
be done independently of political considerations." What
I was saying there was I do not think the status quo is maintainable
because it is perfectly plain—I am talking generally—that
there is so much attention now being focused on the role, with
a searchlight on it which is not at all inappropriate. I cannot
believe in the light of what everybody, including the Attorney
General himself has said, that the current arrangements would
remain completely in place. That is the inevitable consequence
of a change in the political climate over a long period of time,
the fact that people are looking at it, the fact that everybody
has a variety of views on what the way forward would be. What
I am trying to say there is I do not think that the status
quo is maintainable.
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