Select Committee on Constitutional Affairs Minutes of Evidence


Examinatin of Witnesses (Questions 160-179

RT HON LORD FALCONER OF THOROTON, QC

28 FEBRUARY 2007

  Q160  Mr Tyrie: Have you particular bits of the role that you think are unsustainable? You have posited two models.

  Lord Falconer of Thoroton: I think there are three. One is the current model broadly where you have a minister and the non-ministerial person put together, who is effectively a politician in either Commons or Lords. The second is somebody who is in either the Lords or the Commons but is a non-politician. Although this is not quite the position in Scotland, the Lord Advocate has for the first time been somebody who is not a member of the governing party. She is somebody who is specifically non-political. Although she has some ministerial roles, she has basically said, "My role is to do the superintendence of prosecution and to give legal advice." A third model is somebody who is not a politician, who is in neither House of Parliament and does the legal advice, the superintendence of the prosecution role in the sense of deciding whether a prosecution will start or finish, and has a propriety and public interest role, which the Attorney described in his evidence. It is basically one of those three models.

  Q161  Mr Tyrie: That is extremely helpful. The evidence you are giving us will help us. I do not have a view but on the idea of having someone who is not a politician. The former Attorneys General both felt that it would be wrong for an Attorney General or someone playing that role not to be answerable directly to the House of Commons or to Parliament. What would be your response to that?

  Lord Falconer of Thoroton: I can see that there would be considerable merit in it being possible to question in Parliament, either Lords or Commons, the Attorney General on decisions such as BAE if that is a decision that he had taken. On the other hand, if the position is that these sorts of decisions, either referred to legal advice or prosecutions, are to be taken on a quasi-judicial basis, they are being taken in effect—whether it be the giving of advice or the forming of a view about whether a prosecution should go ahead—on a quasi-judicial basis. Therefore, in one sense, that is not particularly a matter where accountability is so critical. Politicians get advice a lot of the time and there is a difference between the decisions they make on the basis of that advice and the quality of advice that they get. The other argument for why it is good to have a politician or somebody in the House of Commons or the House of Lords doing it is that the Attorney or the Solicitor understands better the people he is advising and they would respond better being advised by a fellow Member of Parliament than to somebody from the outside. That is a view strongly espoused by some former Attorneys General. Others say, "Why would you not pay attention?" If the Treasury Solicitor says something to me, I am not going to say him, "Well, you are not a Member of Parliament."

  Q162  Chairman: One of the problems with the non-politician line is that, following the change in your own position such that your successor could be a non-lawyer, if the Attorney also ceased to be in government as a lawyer, you could have a situation in which there was not a senior lawyer in government. Is that a problem or is it not?

  Lord Falconer of Thoroton: It could well be a problem and I see force in that argument. The difficulty is you have to be clear what role an individual is playing. If you are in government as a politician doing partly legal and partly non-legal stuff, your role is slightly blurred. A lot of this depends on what you think the Attorney General should be doing and if he is doing an exclusively lawyer's role then quite a lot of it becomes easier, it seems to me.

  Q163  Mr Tyrie: That is extremely helpful. As a non-lawyer, I generally take a lead from advice I get from people who have thought about it a great deal. You said at the beginning that you had a completely open mind on these matters. My impression, listening to you, is that the first of your three models is one that you have some doubts about, where we should carry on as we are pretty much, and that therefore we should be looking at one of the other two. Have you any inclination at all between these or do you have a completely open mind?

  Lord Falconer of Thoroton: I have particular views but I am not prepared to express a particular view in favour of one or other model because there is a policy element in this as to what should be done about the Attorney General one way or the other. There is no proposal to change the role. I am in this delicate position of being keen to see a debate take place. All I can do is put before you what I think the particular model and pros and cons are in relation to it.

  Q164  Mr Tyrie: I think it is fair to say that there already was a debate. Your intervention was a slight misquotation although you confirm that the status quo cannot be maintained and that the role was not sustainable. They are not far away from one another. The fact that you have intervened in that way certainly accelerated the process whereby people would think about this and it probably has had some influence over whether this Committee should look at it. Do you have a time frame over what is now and what may well become uncertainty over the role of the Attorney General and when it should be brought to a conclusion?

  Lord Falconer of Thoroton: No, I do not. How long is a piece of string? How long should a debate go on? Will an answer emerge? I suspect this Committee will produce a report. The Government will be obliged, quite rightly, to respond to it. The consequence of that will be that we will have to form a view on what the right and the wrong thing to do is. I can tell you that we will deal with your report within a reasonable time but I cannot tell you when the debate will end.

  Q165  Mr Tyrie: We are talking about the intention to do something in this Parliament, are we?

  Lord Falconer of Thoroton: I am keen for there to be a debate. The government has no view about change or no policy to change at the moment.

  Q166  Bob Neill: I get the sense that your view is that, whilst it might be desirable to have somebody who is a lawyer at the heart of government, to use the current Attorney's words, it is not essential to have somebody who is a lawyer because they are a lawyer, as opposed to somebody who happens to have that experience.

  Lord Falconer of Thoroton: I think it is absolutely vital that any government has a source of definitive, legal advice. When you say "at the heart of government", there must be somebody who is able to say, "This is the legal position in my view" and there must be a convention that prevents government departments going and getting advice until they get the advice that they want. There needs to be a hierarchy of legal advice. It has always been the case that the Attorney General's view is definitive within government. Whatever model you have, you need to preserve that.

  Q167  Bob Neill: I accept that but on some of the models you posit that need not be a politician.

  Lord Falconer of Thoroton: I agree.

  Q168  Bob Neill: If we go down the route of one of those models, which is that the Attorney is essentially the lawyer, the giver of advice and the sanctioner of prosecutions, do we not also then have to look at how that changed role impacts upon the role of the Treasury Solicitor and of the DPP?

  Lord Falconer of Thoroton: You probably would do, yes, though again the Treasury Solicitor and the DPP's role will continue exactly as before. Indeed, the Attorney General's statutory functions, both in relation to advice and in relation to prosecutions, can continue as before. The question is what is the nature of the person doing the job. Is he or she a politician or not? Is he or she somebody in Parliament who is a party politician? Is he or she somebody in Parliament who is not a party politician?

  Q169  Bob Neill: Do you think it would be helpful under those circumstances to have somebody other than the DPP, for example, as the ultimate sanctioner of prosecutions? Would that be a duplication perhaps?

  Lord Falconer of Thoroton: I do not think it would be necessary to make that change. Many statutes requite the Attorney General's consent to prosecutions. I do not think you need to change that. You just need to address the issue of what is the basic structure within which the Attorney sits.

  Q170  Bob Neill: That goes in a very different direction to the current Attorney's suggestion that his role should comprise responsibility for a serious government department.

  Lord Falconer of Thoroton: I read with enormous interest his evidence before this Committee. He corrected somebody when they said "big Government department". I thought he was meaning the Attorney General should have proper support. I am sure that is right and I am sure the support he should get should be the support that is commensurate with the role he is playing. Siân James asked me the question about defining what he should do first. Practically everything else fits into place.

  Q171  Bob Neill: Do your own thoughts indicate that doing that, setting clear objectives, which I take is part of it, goes beyond reforms to the oath and other matters that the current Attorney has already conceded?

  Lord Falconer of Thoroton: The Attorney refers to changes to the oath. If you took the view that that was sufficient, that would be sufficient, as it were.

  Q172  Bob Neill: I get the sense you are saying that we should perhaps go much further than that.

  Lord Falconer of Thoroton: I am not expressing a view one way or the other in relation to that.

  Q173  Bob Neill: I am not going to get one, even if I try.

  Lord Falconer of Thoroton: You are not. That is correct.

  Q174  Chairman: You have said that it is a good thing there is a debate and that you do not have a time frame for it. You will remember that when you were appointed Lord Chancellor and Secretary of State for Constitutional Affairs, at 6pm the post of Lord Chancellor had been abolished. By 10pm it had been reinstated and you discovered that you had to be put in a wig and gown and sat on the woolsack by 11 the next morning. There was, as has been generally acknowledged, a back of an envelope job done on fundamental constitutional change. We keep reading in our newspapers that there could be a substantial shuffle round of functions affecting the Home Office, your department and possibly even the Attorney General who, when he spoke to us, seemed to be thinking of at least some of the functions in relation to the criminal justice system that he might gain in all of this. Are we going to suddenly discover some day next week that another back of an envelope job has been done?

  Lord Falconer of Thoroton: Could I deny, both formally and informally, that the abolition of the Lord Chancellor was a back of an envelope job? There is a difference, it seems to me, between a machinery of government change where you change which minister is responsible for which bits of government—which is being discussed—and one where you abolish a particular office, which is what the Lord Chancellor's role involved. It is public that there are discussions going on about whether or not the Home Office's functions should be divided. There are discussions going on as to whether that would lead to the creation of what is traditionally called a Minister of Justice. Those discussions are pretty well advanced. I cannot tell you what conclusion they will reach but that is the position.

  Q175  Keith Vaz: We know the conclusions because Francis Gibb has already written about them in The Times. Have you seen that table setting out exactly which parts of the Home Office you are going to have, which parts are going to be kept by the Home Secretary? It is a done deal, is it not?

  Lord Falconer of Thoroton: I cannot comment on it save to say that discussions are going on.

  Q176  Keith Vaz: This is a public discussion. Did you not say it was in the public domain?

  Lord Falconer of Thoroton: I said it is public that there are those discussions.

  Q177  Keith Vaz: Can you confirm what has been put in The Times? Next week are we going to see exactly that same formula being announced by the Government?

  Lord Falconer of Thoroton: I cannot confirm or deny what is said in The Times.

  Q178  Keith Vaz: Presumably you are part of these discussions?

  Lord Falconer of Thoroton: There are discussions going on.

  Q179  Keith Vaz: Clearly the last Lord Chancellor was not part of the discussions.

  Lord Falconer of Thoroton: This is a different sort of issue to that issue. To have a machinery of government change where there is a reworking of Whitehall is a different thing from the abolition of the Lord Chancellor's role. It is public that there are these discussions going on. They are internal discussions and an announcement will be made in due course.


 
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