Examination of Witnesses (Questions 340-359)
RT HON
LORD GOLDSMITH
QC
27 JUNE 2007
Q340 Mr Tyrie: You hope you will
be persuasive.
Lord Goldsmith: Not necessarily
that. That is only one side of it. I hope that I will help the
prosecutors identify the right issues and help them look at certain
matters that they might not otherwise have done. If I thought,
which I did not, that the Director was going wrong in relation
to the decision, I would have said so.
Q341 Mr Tyrie: This has been a decision
taken largely on the basis of advice, although not entirely, from
an ambassador at one moment in time, at one particular level of
security risk, on the basis of one set of evidence about the terrorist
threat and the importance of information that is being exchanged
on that terrorist threat. I am summarising, perhaps crudely, what
I have just heard, but I do not think, if you look at the transcript,
it is a million miles away from what we have just heard. That
risk may change. The security risk may be different in a year
or two. The perception of the Saudi administration of the damage
that they feel it would do might change. Is this not something
we should keep under review?
Lord Goldsmith: I am not sure
you can and, for reasons which were given by the Chairman in opening,
it will not be my view about that which has any relevance in the
future. I want to go back if I may. I do not know what the Director
has said. I know—and I have said this and he has confirmed
it—he saw information which was not just from the ambassador.
I know the ambassador's views were very important because he was
on the ground and knew the situation, but he saw the same information
that I have seen from the Prime Minister which sets out the views
of others within Government and other very senior officials.
Q342 Mr Tyrie: When you say "from
the Prime Minister", is that the information that came from
Richard Mottram, which perhaps went via the Prime Minister, or
is this a separate briefing that came via the Prime Minister?
Lord Goldsmith: It was part of
the same package. It certainly came from Richard Mottram and indeed
the Permanent Secretary at the Foreign Office as well as taking
account of the views of the agencies. I think one has to recognise
that there are moments at which a decision has to be made. On
the basis of the information that the Director had and indeed
that I had, if one takes a different view as to the decision he
took it has to be on one of two bases. Either one thinks one knows
better than the people whose job it is to judge what the risk
to national security is and it is their job to know or you say
I do not mind, even if their judgment is right, that the consequence
of this might be a risk to British lives, I would rather continue
with this uncertain or, in my view, very likely not to continue
at all prosecution and risk those lives. I think you have to make
the decision on that basis at that time and I believe the Director
was right to make it at that time.
Q343 Mr Tyrie: I would like to ask
about the Department of Justice's apparent opening of an investigation.
We do not know for sure that they are going to open an investigation.
I heard you commenting on that briefly on the radio this morning.
Can we just clarify, first of all, what the position is within
Government? If a request for mutual legal assistance is made,
who will take the decision on whether to accede to it?
Lord Goldsmith: Requests for mutual
legal assistance come through the Home Office, which is what we
call the central authority for these requests, but if the request
is for information from a particular government department just
as if it is a request for particular information from a private
individual, I think it would be for that department or that individual
to consider whether they thought it was necessary, right or appropriate
for them to respond.
Q344 Chairman: Is that an oversight
in the recent reorganisation, that it was not transferred from
the Home Office to the Ministry of Justice?
Lord Goldsmith: As far as I am
aware it has not.
Q345 Chairman: I am slightly surprised
that it has stayed with the Home Office.
Lord Goldsmith: There was something
of a debate as to where it ought to go. There had been discussions
going on as to whether it ought to come to the Attorney General's
office because it is the prosecutors who tend to have to deal
ultimately with the requests for information. I am not aware that
has been resolved.
Q346 Mr Tyrie: Who is going to be
responsible and accountable to Parliament for the decision?
Lord Goldsmith: I do not know
what the request is going to be about. If the request is for information
from the Ministry of Defence as to how the contract came to be
entered into or how it has been run or something like that, ultimately
they will have to be accountable for decisions they take as to
what information they provide. Obviously there are mechanisms
in all mutual legal assistance arrangements ultimately for a determination
to be made if someone who is being asked to provide information
does not want to do so.
Q347 Mr Tyrie: Perhaps you can scroll
forward just a few hours to when you are no longer the Attorney
General and try and speak as somebody who has been the Attorney
General. Do you think the Government should do everything it can
to cooperate fully with an investigation, if there is one?
Lord Goldsmith: I really do not
think it is right for me to comment on that because I do not know
what the nature of the investigation is and I do not know what
the questions are that are being asked. I really do think it is
inappropriate for me, even as a hypothetical out-of-office person,
to comment on this.
Q348 Mr Tyrie: I want to ask you
about something you mentioned yesterday before the Human Rights
Committee and it was also mentioned on the radio, which is that
I think it is your view that there should be an investigation
into directions given at Brigade level on the treatment of prisoners.
No doubt you will have examined in some depth the issue of extraordinary
rendition, which is a related issue.
Lord Goldsmith: Not in some depth
but of course I am aware of the issues, yes.
Q349 Mr Tyrie: Do you think there
is now a case for an investigation into the treatment of those
British residents and British subjects who allege that they have
been maltreated and tortured in some cases as a consequence of
finding themselves in what is known as the High Value Prisoner
Programme in the United States?
Lord Goldsmith: May I repeat what
I said yesterday, which is that the acknowledgement in September
2006 that there were facilities being operated under a covert
detention policy I think was a matter of great concern. I think
it is very important that it should not happen again. That is
not something that we have been running. I am assured that it
is not something in which we have ever been involved and I believe
those assurances. We have never knowingly been involved in that.
I am not sure to what extent it is for me sitting here to say
very much more than that at this stage.
Q350 Mr Tyrie: Perhaps I will rephrase
it with one last question. If I may commend you, I think it was
excellent you did say what you said about Guantanamo Bay, which
has certainly been in advance of the current Government position,
that is, that Guantanamo Bay is wrong legally and ethically. Do
you also think that the programme of extraordinary rendition is
wrong ethically and legally, that is, the kidnapping of people
and taking them to places where it is widely alleged and now substantiated
by a large number of investigations in Canada, Italy and Germany
they may be tortured?
Lord Goldsmith: The answer to
that essentially is yes, but I think I need to define the language
because I think people use the language slightly differently.
I am a lawyer and a cautious lawyer about this. Rendition is a
way of bringing people to a legal process where they can be put
on trial and there is nothing wrong with that. Extraordinary rendition
may sometimes mean bringing people to a legal process because
there is not some existing extradition treaty and there may be
nothing wrong in that.
Q351 Chairman: It has been found
to be true in a case in this country.
Lord Goldsmith: It has. I said
there may be nothing wrong. It would depend upon what the arrangements
are. If there are arrangements in place which are being circumvented,
that would be different from a case where there simply are no
arrangements. If this is what the position is, of taking people
and then moving them to a place which is, as it were, outside
the legal process, where the detention can be reviewed, I am sorry,
whatever the exigencies of the situation, if they are then subjected
to treatment which we would regard as inappropriate, I would unhesitatingly
say that that is wrong.
Q352 Bob Neill: I am very glad to
hear you say this. I wanted to come back very briefly to Mr Tyrie's
point about MLA requests. I understand your point, but just to
get it clear in my mind, it depends on what the nature of the
material requested is. You referred to the instance of MoD material.
If an MLA request relates to the material which has been amassed
in the course of an SFO investigation, who then politically, as
you understand it, takes the decision and who is accountable for
that?
Lord Goldsmith: I would think
in the first instance the SFO would consider whether it was right
to pass over certain information to another government. It would
be for them to take the decision in the first instance to do that.
Q353 Bob Neill: In terms of accountability
to Parliament, is that then dealt with internally?
Lord Goldsmith: If a request was
raised about that in Parliament, it would be the Attorney who
would have to answer for that.
Q354 Bob Neill: The thing that interested
me about the relationship between the SFO and the Attorney that
the BAE issue has raised was this question that you have superintendence
and I think you define that as being the right to be informed
and consulted on sensitive, high profile cases. You see a point
about this in the BAE instance and there is the fact that your
advice might be sought by the Director in relation to public interest
matters and so on. Are you saying you would be reluctant to intervene
directly in the conclusions as to whether an investigation should
proceed or not or are there circumstances when you would think
it is necessary that—
Lord Goldsmith: Are you restricting
this question to investigations?
Q355 Bob Neill: To prosecutions.
Lord Goldsmith: I take the view,
which I believe was the conclusion which Sir Ian Glidewell reached
when he looked at the CPS, that if ultimately, after discussion,
there is a difference of view between an Attorney General and
a Director then the Attorney General's view should prevail. I
have never had to test it. I think it would be quite a big thing
if it had to be tested. I do not direct.
Q356 Bob Neill: In the BAE situation
of course it did not come to that because you and the Director
reached a conclusion that you broadly agreed about albeit by slightly
different routes. From the perception of the public, in terms
of how independent that decision can be, you have the Director
and his team, the distinguished Queen's Counsel and they can instruct
and prosecute a case, have a view and along comes the Attorney
who has his own silk to give his own advice. Does that really
help the perception that the Director has a free hand in coming
to his decision?
Lord Goldsmith: I do not see why
not. I do not see why it should be wrong for the Attorney who
is concerned about aspects—and I have done it in other cases—to
say, "I am not absolutely sure. I do not think this approach
is right", and rather than simply relying upon my own view
about that say, "Let us get somebody else who is experienced
and who is independent to take a view on it. If it turns out I
have got that wrong then that is fine". It is very important
to understand that the Attorney stands outside Government when
it comes to prosecuting decisions. It is not a matter for collective
responsibility. It is not a matter I would ever allow to be discussed
in Cabinet, absolutely not. My colleagues know that they cannot,
except in the specific context of a formal Shawcross inquiry,
come and lobby me about a particular prosecution and I hope my
successor will take exactly the same view, that that simply is
not an appropriate thing to do. Views on public interest maybe
but not lobbying on particular cases. If anyone has any doubt
about it I will say, particularly in this Government, "Remember,
the first Labour Government failed because it appeared there was
interference in the prosecution, so keep off".
Q357 Bob Neill: I accept what you
say about that. In terms of the perception of the public who may
be more cynical about these things, is there perhaps a structural
problem here? It may not be the answer. I know you have indicated
your concerns in the past. Should that be an argument for saying
maybe you should look towards something nearer the Irish model,
where the Director of Public Prosecutions in their case or the
SFO Director has almost complete cooperation and independence
from the Attorney?
Lord Goldsmith: I have always
been clear with you and with others that I recognise that there
are some disadvantages in the present arrangements but that I
believe the advantages outweigh those disadvantages. I think the
other models are not as good. I have great admiration for the
present Director of Public Prosecutions in Ireland whom I know
well. The fact remains at the end of the day that prosecution
is a function of Government. It is one of the basic things that
Government is there to do, protect law and order and protect individuals
through that process. It is not some wholly independent private
activity. I think the present Lord Advocate in Scotland put that
point extremely well. What that means is Government has a real
and proper interest not in whether a particular decision is taken
on the evidence but on the way the Prosecution Service is run.
If, for example, Government was of a view, as indeed it has been,
that many women are subjected to violence at home which has not
been treated seriously by the police or by prosecutors, that that
needs to change and to say in those circumstances the prosecutors
now need to set up a system where they have domestic violence
specialists, where they are able to have a policy which deals
with domestic violence and take a more robust view of it, I think
it is very proper for Government to say that to a Director. I
think if you have an entirely independent Director the Director
may say, "That is not my view". I think Government is
entitled, through a proper independent law officer, to be able
to say, "I think we should look at whether or not you can
take a different priority in relation to this particular sort
of crime". That is an example.
Q358 Bob Neill: That is a very topical
note in the light of what I think was on Despatches, that
is, the question of honour killings and investigations there.
It is something that has interested me. I take it you would say
that those particular types of offences, honour killings, should
be a top priority for the police for all the reasons that you
have talked about, would you not?
Lord Goldsmith: A priority, yes.
Thank you for raising it. Because I take that view, several months
ago I called a meeting to which I invited parliamentarians, community
leaders, the police and the prosecutors and I said that we had
to look at this problem of so-called honour killings. In fact,
they are not honour killings at all, they are dishonourable. I
said that we ought to look at this to see whether there is more
that we can do. I think it was helpful for someone in Government
to be able to organise that. In the same way, I have been concerned
about whether or not everyone has taken seriously enough particular
rabid incitements to violence and whether we were sufficiently
robust in looking at that. Again I got the police and the prosecutors
over and said "Can you do more?" and they have now set
up a national strategy to deal with that. It is a good example
of where Government has a proper role to play through a law officer
rather than perhaps through a wholly political minister who will
be seen as sort of tub thumping rather than trying to get things
right.
Q359 Bob Neill: Would you say homicide,
whatever the motive, should have the same priority?
Lord Goldsmith: Yes. I think I
would go further than that because when a young woman, for example,
is killed by her own relatives that is even worse because they
are the very people she should be able to turn to for protection
and support. I absolutely agree with you, I think it is a very
important issue.
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