Examination of Witnesses (Questions 320-339)
RT HON
LORD GOLDSMITH
QC
27 JUNE 2007
Q320 Chairman: The Solicitor General
cannot do that.
Lord Goldsmith: No, I entirely
accept that.
Q321 Chairman: Nor could the Attorney
if he were in the Commons?
Lord Goldsmith: I absolute agree.
You are absolutely right. I am expressing my personal view, because
you have picked up a little degree of hesitancy.
Q322 Julie Morgan: Do you think there
is an uneasy fit between those two jobs?
Lord Goldsmith: No, I think it
can be done, and I think my predecessors, Paddy Mayhew and others,
were very clear as to what their professional judgments needed
to be. They obviously played a political role, but if I am a bit
sensitive about it I suppose it is because of accusations that
have been raised, saying, "This man is just a politician
and he should not be doing this". Whereas, in fact, the way
I reach judgments on these cases is not as a politician, absolutely
not, it is as a lawyer trying to understand the legal issues and
the proper public interest issues.
Q323 Julie Morgan: So being in the
Government and taking the Labour Whip has never influenced any
of your decisions as a lawyer
Lord Goldsmith: Absolutely not.
I think it actually gives me an advantage. Again, I have said
this before, and so have other law officers, when I tell members
of the Government (two things) that they cannot do something,
they accept it with good grace from me because they know, as it
were, that in a sort of general sense I am on their side and if
I am saying they cannot do it is not because I am being political
about it from another angle. I think it also helps that I understand
what their overall objectives are (this is back to the issue of
attending Cabinet) because I think it helps to hear the debate
to understand what it is that colleagues are trying to do, what
their objectives are. I think it helps you to help them to reach
their objectives through a proper and lawful route, rather than
sitting in a back room and waiting for them come up with a policy
when you just have to say yes or no. That is my view. It is why
I think company secretaries should sit in board meetings.
Q324 Mrs James: Can I develop this
theme a bit further. How can the prosecution services maintain
their real and perceived independence if they have a senior government
minister who is a political appointee as their superintendent?
Lord Goldsmith: I absolutely believe
they can. It has happened for a very long time over the years.
Obviously, a key issue for that is it being clear that when it
comes to exercising decisions in relation to prosecution, then
the law officer has to act independently of government. That is
very clear. Again, forgive me for repeating myself, but it's an
absolute act of faith in my office, because in 1923, when the
then Attorney General was thought to have changed his decision
as a result of the Cabinet having required him to, that led ultimately
to a vote of no confidence in Ramsey MacDonald and his first government
falling, and the officials in the office are absolutely vigilant
to make sure that decisions which are being taken are being taken
on proper legal grounds. I do believe that is so, and that is
why I think some of the suggestions that are made about the political
influence in decisions are very unfortunate but completely untrue.
Q325 Mrs James: So you think the
people within your department, within the system, are making doubly
sure, that they are very sensitive about this issue?
Lord Goldsmith: I am sure they
would be.
Q326 Mrs James: And are absolutely
aware of it?
Lord Goldsmith: I am sure they
would be. None of my officials have ever said to me, I am glad
to say, "Look, we think that you are not taking the right
considerations into account", but they are deeply involved
in all the decisions. They get briefings on all the cases, they
sit in on meetings always and they can see the basis upon which
the decision is being made. I have no doubt that they would say
something if they thought a decision was being made on an improper
basis. I know of a former law officer who told me that he started
a conversation on the phone with a senior politician on one occasion
and one of his members of staff came rushing in saying, "What
are you doing? Do you not realise you should not be taking these
decision on a political basis". I am sure he was not, but
it just illustrates the sensitivity to this.
Q327 Chairman: Everybody is aware
of the role of the Attorney in deciding whether to continue with
a prosecution on public interest grounds, but in relation to the
Serious Fraud Office it seems that you have a slightly different
role in that you can also decide whether an investigation should
cease. That is not quite the same situation as arises if, say,
the Metropolitan Police were investigating a major matter. You
would not be deciding on their behalf, would you, that the investigation
should cease?
Lord Goldsmith: I agree about
that. I agree that is a difference. Indeed, when, therefore, the
BAE case came up, that was something that I had to reflect on,
but I think at the end of the day, if your view is, for example,
as it was the Director's view, that continuing the investigation
was going to give rise to the national security concerns that
have been identified, then it is appropriate for the Attorney
General to be involved in considering that decision with him.
Q328 Chairman: Would that not have
happened if it had been the Metropolitan Police that were carrying
out the investigation?
Lord Goldsmith: It might have
done. There are occasions where what has happened is that the
Metropolitan Police, or any other police force, might be involved
in an investigation and they may say to the prosecutor, "Look,
we have not completed this investigation, but we want to know,
will you actually go ahead with this prosecution if we do all
this further work?", and it may be because they are concerned
about the work that is involved or it may be something else, but
it would be perfectly proper for the prosecutor, faced with that,
to say, "Actually, if all you can show is X, Y and Z, we
would not continue with it", or even to say, "Actually,
this is not a case that we would continue with in the public interest".
This is at the other end of the extreme, but I know that the Metropolitan
Police will not investigate certain cases because they believe
the CPS would not continue them on public interest grounds; so
I think it is perfectly proper for a prosecutor to be involved
in that decision.
Q329 Chairman: Can you really imagine
that in cash-for-honours you would turn to the Metropolitan Police
and say, "Don't investigate this any further because I don't
think on public interest grounds a prosecution would follow?"
Lord Goldsmith: I plainly would
not have done that in that particular case. I can give an example.
You will recall that two British citizens were killed in Gaza,
one undoubtedly by Israeli defence forces and one perhaps by Israeli
defence forces, and the Coroner raised the question of whether
this was something that the Attorney should take up and seek to
pursue through the extradition process. That has involved me being
in discussions with the Metropolitan Police to find out whether
they would be prepared to investigate that and whether it is something
that ought to be done generally in the public interest in a broad
sense, that is, for an investigation to take place and for a prosecution
to be brought. In one of those cases I have persuaded the Metropolitan
Police to carry out a particular part of the investigation which
I think actually throws new light on one of those cases. That
is a somewhat different, specific issue.
Q330 Chairman: We were puzzled by
what the Prime Minister said in relation to the BAE Systems case.
When you try to understand the process in which politics and prosecution
decisions meet we find it rather puzzling. He was asked about
the BAE Systems case and he said, "I'm perfectly happy to
take responsibility for it"—that is the decision not
to proceed—"Let me explain why I gave the advice I
did. It would lead to the complete wreckage of a relationship
that is of fundamental importance to the security of this country,
to the state of the Middle East and to our relationship with countries
in the Middle East. That's why I took the decision. I did not
regret it then and I do not regret it now." This implies
a very direct involvement of the Prime Minister in a rather political
sense in a process which you have previously described as very
separate from the political process.
Lord Goldsmith: Yes. If one takes
the whole of the Prime Minister's comments in context, what he
is saying very clearly is he takes responsibility for the advice
that was given and that the consequence of continuing would cause
these national security issues. I have no doubt at all that he
was very, very well aware that it was not for him to decide whether
the investigation should continue and that was not a decision
that he took. He is saying that he takes responsibility for the
advice that was given, that the consequence of continuing would
be the withdrawal of cooperation and he understood the significance
of this. It was not only his view because we know about the views
of others who were consulted. As I have explained and put in the
memorandum, under the Shawcross doctrine it is very proper for
prosecutors to ask ministers about what the public interest considerations
of continuing a case would or would not be, but it must be for
the prosecutors to reach their decision and they alone must reach
that decision in the light of that. If you have read the memorandum
in relation to BAE which we put in under Freedom of Information
requests, you will see in fact that in December 2005 there was
a view from ministers that the consequence of continuing the investigation
would damage our commercial interests. The result was, however,
that I said, "No, that is not a legitimate reason for stopping
this investigation. It goes on".
Q331 David Howarth: In fact that
raises an interesting point in itself. The Prime Minister's statement
plainly includes legally inadmissible reasons and it talks about
international relations. Who advises the Prime Minister on the
legality of the advice that he gives?
Lord Goldsmith: I do not think
it happens in quite that way. The answer is he knew very well
because he had been told that Article 5 of the OECD Convention
could not take into account, in particular, commercial considerations.
At the end of the day, it is not a question of whether the Prime
Minister's advice is lawful. It is a decision which is made by
the prosecutors and the prosecutors have to consider what the
factors are that they are being asked to take into account and
decide whether they are proper or not. The Director has been absolutely
clear and I have been absolutely clear that commercial considerations
were no part of it. What it was was national security. I have
said I am quite clear that the OECD Convention does not prevent
you from taking into account national security considerations
and I note that since I said that Mr Justice Collins in the High
Court has absolutely confirmed that. He said he thinks that the
case that the decision of the SFO is judicially reviewable is
unarguable. That may go on, as all these cases do, but that is
the present view. I have also noticed with some interest that
Professor Mark Peith, who was the chairman of the LOECD Bribery
working group, is reported to have said that he also accepts that
national security is a legitimate ground and is not in breach
of Article 5, though he adds a rider, which is that it must be
in cases of extreme necessity. Where he quite gets the rider from
is not really for today. I think when British lives are at stake
it is a case of extreme necessity. The principle of it is accepted.
I can give you that detail if it helps.
Q332 David Howarth: Yes. These arguments
are continuing. I am not wanting to follow the line of the legal
argument but another part of the problem. We have heard this morning
from Mr Wardle that the advice as he saw it did not take into
account the risk that all the information about Prince Bandar
and about the nature of the investigation will come out, but it
has come out. It has come out in the press in the sense that various
other investigations are under way. Does that not suggest, since
as far as we know the dire consequences for national security
have not happened and cooperation has not been withdrawn, that
the original advice was unduly pessimistic about the consequences
of this information being revealed?
Lord Goldsmith: Firstly, I do
not think it does because the fact that certain newspapers print
certain allegations is not the same as the State actually pursuing
action on a particular basis. Secondly, I think one has to make
a judgment on the information at the time and the judgment was
very, very clear and I think the Director was entirely entitled
to rely on the judgment that was made. I have not heard the session
you had with the Director, but I was told that the question had
been put to him of whether he would take the same decision today
and I understand that his answer to that is that he would in light
of what he was told and even what he knows now.
Q333 David Howarth: What I am interested
in is your role as a filter and whether, knowing what you now
know, you might be more sceptical of claims of serious damage
to national security of this nature in future and so might you
advise your successor to be more sceptical now that you know,
or at least we think you know, that the consequences did not occur?
Lord Goldsmith: With respect,
I think you are absolutely wrong to say that the consequences
have not occurred because there have been some reports in a newspaper
and, therefore, that proves that none of this was going to happen.
One starts to get into the nature of the security consideration,
which I think the Chairman knows more about perhaps than others
because I understand this has been looked at in the ISC.
Q334 David Howarth: One of the points
was about the nature of the security consideration and what we
heard this morning was it was a question of confidentiality, of
privacy, of these matters not being discussed publicly and yet
they are.
Lord Goldsmith: They are by some.
It seems to me that there is a big difference between allegations
which are denied being reported in newspapers and the State directly
taking an active stance against particular people. I just want
to add one other thing. Please do not lose sight—and I am
sure you will not—of the fact that when it came to my particular
views about this, I also had a different view from the Director
about whether this investigation would have got anywhere. Rather
interestingly, I think the things that have come out tend to support
what I was saying about never being able to prove that these payments
were not actually approved and known about by the Saudis at the
highest level. We could go into that if you want to.
Q335 David Howarth: Yes, we do want
to go into that.
Lord Goldsmith: I had raised for
quite a long time with the Director and the staff an issue about
whether this prosecution, which was not based on the particular
gentleman that you have identified but on another aspect of this,
would ever get anywhere on the basis that BAE had always said
that the payments were known of and approved by the Saudis. Our
corruption law does not allow us ultimately to pursue a corruption
case if the principal has approved. There is a question about
who the principal was. That was an issue, as I say in the information
memorandum, that I had raised with the SFO over the months, asking
how they were going to prove this and I allowed them, I believe
rightly, the opportunity to pursue certain lines of enquiry to
see if they could. At the end of the day and having taken independent
legal advice myself, I take a different view from the Director.
I do not think ultimately they would have been able to get over
that. I was then faced with the risk that we would have a period
of, on the SFO's estimate, 18 months of further investigation,
further proceedings, at the end of which I do not think the case
would have gone ahead. There is a bit of the role of superintendence
there in this sense. I have stood at the Despatch Box on a number
of occasions explaining why high profile cases have collapsed,
ie Princess Diana's butler, the Jubilee line, Trooper Williams,
and there are others as well. People sometimes say, "Well,
you're now explaining what happened at the last moment, that you
couldn't actually proceed with this case. Couldn't you see that
coming?" Sometimes you have to look ahead and say, "Can
you actually see this coming? Is it right if you can see something
coming to allow the country to be put at risk during that period?"
Weighing that against the national security, in my mind it seemed
that the Director was right to say, "Bring this to a conclusion
now".
Q336 Mr Tyrie: We have heard that
the decision was taken on the basis of national security by the
Director of the SFO. He did use an interesting phrase where he
said, which relates to the Chairman's opening question, "I
took the view that this was my decision and not the Prime Minister's".
He did not say, "This was my decision and not the Prime Minister's".
Lord Goldsmith: He said that many
times. He said it on television. He has said it in newspapers.
Q337 Mr Tyrie: Be that as it may,
he took the decision or he thinks he took the decision. Do you
think that SFO directors are the people best placed to make judgments
on such difficult national security issues?
Lord Goldsmith: He had the benefit
of very clear advice, some of which, as you know, he got directly
from our ambassador at meetings in which I did not participate.
He saw the same information as I did, which was a very clear view
expressed by the Prime Minister with the benefit of advice from
those others within government whose job it is to know about security
risks, not just ministers but also officials. I think he was perfectly
entitled to take that view. If I thought he was completely wrong
I certainly would have said so. I never shied away from saying
I agreed with the decisions, although for me it was a somewhat
different decision because I was weighing up these national security
considerations against a case which I thought at the end of the
day would not go ahead at all. So I thought then it was the right
decision to take and I think now it was the right decision to
take.
Q338 Mr Tyrie: I am just probing
because you have been strongly supportive of retaining an Attorney
General role similar to your own. Although you have persistently
said, apparently correctly, that this was a decision made by the
SFO, is this not exactly the sort of area where you would want
a government minister who has access and experience to the interpretation
of national security evidence to take a decision?
Lord Goldsmith: He did have that
because he had me.
Q339 Mr Tyrie: But you did not take
the decision.
Lord Goldsmith: I understand that.
It comes back to what I was saying about superintendence. I can
express a view, I can be involved and consulted on cases where
again I am not taking the decision, but I hope that the ability
to discuss it—
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