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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