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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 306-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE CONSTITUTIONAL AFFAIRS COMMITTEE
THE CONSTITUTIONAL ROLE OF THE ATTORNEY GENERAL
Wednesday 7 February 2007 RT HON LORD GOLDSMITH QC Evidence heard in Public Questions 1 - 111
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Constitutional Affairs Committee on Wednesday 7 February 2007 Members present Mr Alan Beith, in the Chair David Howarth Mrs Siān C James Bob Neill Mr Andrew Tyrie Dr Alan Whitehead Jeremy Wright ________________ Witness: Rt Hon Lord Goldsmith QC, a Member of the House of Lords, Attorney General, gave evidence. Q1 Chairman: Mr Attorney General, welcome back to the Committee. Thank you very much for your memorandum, which is very helpful and I think saves us from asking quite a number of things we might otherwise have had to. It sets out very clearly your view of your role and gives us some other interesting material as well. In that memorandum you have referred to select committees and when stressing your accountability to Parliament you said that you could see value in scrutiny by a suitably well-informed select committee. I take it that you had us in mind when you wrote those words. In fact, you might be interested to know that when the Committee was first set up it was originally proposed that the Attorney General's office should come under our scrutiny, but mysteriously it failed to be included. Lord Goldsmith: I am aware of that. Of course I had you in mind, although it is not, of course, for me to say which (if this was the view of the House) ought to be such a select committee, but you are absolutely right, that is one of the points I can pick up. I can see merit in a slightly more regular communication with the Select Committee than I actually have at the moment. Q2 Chairman: Is there not an associated problem? The Minister of State in the Department for Constitutional Affairs said as recently as last Saturday, "It is a contradiction in terms to have an accountable office-holder who is not able to publish to those to whom he is accountable the advice he is given. It is not enough for government ministers to say that we advise that it is lawful. Backbenchers, let alone the wider public, want to see for themselves what the arguments are." Do you agree and is that Government policy? Lord Goldsmith: I do not agree, and it is not Government policy. I am getting very helpful advice from ministerial colleagues at the moment from a number of directions. It is not Government policy and I do not agree. There is one point, from what I understand she said, which is important and I would want to underline it because it is this point about accountability, which I think is hugely important. On that issue, as I understand what she has said, she takes the view, as I do, that it is important to have the law officers within rather than without. Indeed, as you said when we started, you have been voting on me at the moment in a sense and the fact is that if one takes the example of BAE, on three occasions now I have addressed and answered questions in the House of Lords on this, the Solicitor General has also on three occasions dealt with that. We have dealt with a large number of parliamentary questions (PQs), also with correspondence, none of which would, I believe, you could really expect to happen but for the fact that the law officers are within and therefore accountable to Parliament. I think that is a very important positive point. The other point is the issue in relation to legal advice and I set out in the memorandum - and it is well-understood, it goes back a long time and the arguments have been well-rehearsed - why confidentiality generally attaches to the legal advice which is given. I do not think it would be in the interests of the Government, for example, or of the country, if there was litigation and advice given to the Government about the litigation, that that should be published. That would only give aid and comfort, as it were, to others. Q3 Chairman: During litigation? Lord Goldsmith: That is an example which I give, but there are other examples as well. As I say, they are set out in the memorandum, which I appreciate you have read. If I can address quite directly then the question which I know is at the forefront of many people's minds, what if there were to be another occasion where a Prime Minister came to the House saying, "For this reason and that reason military action is something that we want to undertake, the Government believes should be undertaken, and we ask you, Parliament, for your view on that." I think under those circumstances, first of all Parliament would expect and would have to receive a full explanation of the legal basis for that, but it would be a matter for the Prime Minister of the day to determine whether a way of doing that was to disclose legal advice which had been received in that respect. Q4 Chairman: That directly contradicts Harriet Harman's statement that backbenchers, let alone the wider public, want to see for themselves what the arguments are. Lord Goldsmith: I appreciate that, but I am sure I have not come here simply to have a debate about why I disagree with certain statements which have been made outside government by a fellow minister. I am putting forward, and I have put forward in the memorandum, what I understand at present to be Government policy and what the arguments are in relation to that and I have just addressed I think the key question, what would happen if we found ourselves in this situation again? As I have said, and I have no problem with this at all, it would be for the Prime Minister of the day to determine how to ensure that Parliament, and therefore the public at least through Parliament, understood the basis upon which military action was being proposed. Q5 Chairman: For those of us who have been in the House for quite a long time things have in a sense changed slightly because the concept of sending for the Attorney was one which was quite current when I first entered the House and the notion that he would be asking the Prime Minister's permission in order to make clear something which the House needed to know to make a decision did not seem to enter into that consideration. Lord Goldsmith: If I may say so, I think you raise a very important point about the sending for the Attorney because I think things do seem to have changed. I have always responded when I have been asked, for example, by select committees to come and give advice really on the legal position. I did it in relation to assisted dying, I have done it in relation to the sub judice rule and I have done it in the House itself, my House, in relation to smacking. I think there is more opportunity for that to be done, but I think that is partly a question for Parliament to say, "On these occasions we actually want to hear from the law officers on this or that issue," and then one has to determine whether it is the right moment to do it and it is appropriate to do it. As the memorandum says in principle, I think that I would welcome more of that. Chairman: We will return to some aspects of this later. Q6 David Howarth: There are two phrases which constantly come up in your memo and in discussion with the Attorney General. One is the rule of law and the other is the public interest, and I just want to explore for a while your conception of both those phrases. Can we start with the rule of law. How would you define the rule of law? Lord Goldsmith: It is a very good question, because different people define it in different ways. For me there are really three key elements in relation to the rule of law. One of those is compliance with the law and that means domestic and international obligations. That is a key part of the rule of law and I am very happy to expand on the way in which my role is concerned with that aspect of the rule of law. The second part of the rule of law, as I see it, is the relationship with the courts. That is partly respect for the courts and their judgments, which is a hugely important part of having the sort of democratic arrangements which we have, and again I can illustrate the significance of that, but it is also about being sure that within appropriate boundaries - and there are one or two boundary limits on this - we subject ourselves as government to the scrutiny of the independent courts. One of the big criticisms, in my view, of what our otherwise very close allies, the Americans, did in relation to Guantanamo Bay was to try and put it offshore and away from the courts. I think that was completely wrong and it is something which we would, I hope, never have contemplated. So that is the second element of the rule of law. The third element of the rule of law, I believe, is that there are certain basic values which it is important to stand up for. Quite a number of them are to be found, of course, in the European Convention. I think there are some of those on which we ought not to be compromising. One of those is a fair trial, for example, which I think is a key principle. So those are the three headings into which I would put the rule of law. Q7 David Howarth: Let us take the second one first. I think the first one we will come back to and the third we will take as read, but the second one, the degree to which government respects the principles of legality through subjecting itself to the courts. One aspect of your job has to do with prosecutorial discretion. That is non-reviewable? Lord Goldsmith: Well, it is an area where I am accountable to Parliament. Q8 David Howarth: But not to the courts? Lord Goldsmith: There is not a case where they have reviewed the exercise by me of discretion, but they have in relation to the Director of Public Prosecutions and other prosecutors. That is a relatively recent development, it has happened in recent years, but they have not in relation to any decision I have made. Q9 David Howarth: Do you think that situation is satisfactory, that you are in a sense outside the rule of law when you exercise prosecutorial discretion? Lord Goldsmith: I absolutely resist the suggestion that I am outside the rule of law. I do not think that is so. Q10 David Howarth: In that second sense, obviously not in the first? Lord Goldsmith: No, I do not think that can be right. For example, any prosecutorial decision, if it is a decision to prosecute, finds itself in front of the courts in any event and the courts will then determine whether or not the prosecution should have taken place if there is not sufficient evidence there, and the courts and judges will not be slow to criticise if they think that although technically there was a case to bring it was wrong in the public interest, the second area you want to talk about. So I do not accept that at all, but there is a question about accountability of the Attorney General. The last time it was debated in the courts, the view of the House of Lords was that when it came to the exercise of that discretion the Attorney General's accountability was to the public through Parliament rather than through the courts. Those are two different mechanisms for accountability. Q11 David Howarth: The controversy is always about decisions not to prosecute rather than to prosecute, and that is the one where the courts manage to exclude themselves. We are back to Gouria(?) through to BAE Systems. Lord Goldsmith: Not always. I had a lot of controversy over decisions to prosecute in relation to events which took place in Iraq. That was a decision to prosecute, not to not prosecute, but I accept the point that there is a difference between the two. Q12 David Howarth: Yes, and the question is whether a decision not to prosecute, say in the case of BAE "S" is itself fully within the rule of law. Lord Goldsmith: We have had three hours, I think, of debate this afternoon but, if I may, I am not going to let that point go by without saying a word about it because I absolutely reject that. I think it is enormously important to stress that the decision was taken by the Director of the SFO and there has been threatened a judicial review of his decision, so that is something which may end up in court. It is not a question of the Attorney General's decision, but they may try and judicially review me as well. So be it, we will see what the court has to say about that, but what I do not understand is why it is first of all not accepted that that was his decision when he says that it was, and he said that very clearly on a number of occasions, never mind about what I think about people not saying that is the case. He is a very senior, experienced public servant who has been doing this for a long time and why it is not accepted when he says that was his decision I think is really something one needs to ask about. Secondly, we know there is a controversy in relation to the decision itself, one taken in relation to national security, and people will have to judge for themselves what they are saying, that they do not think there was a risk to national security or that they would have been prepared to run it in any event. Some of these decisions are tough decisions. The Director was faced with a tough decision. He explained again today in an interview why he took that decision and I think people should respect him for that and accept that. Q13 David Howarth: But you had a part in that decision. You have an overall superintendency of the SFO and the DPP? Lord Goldsmith: Yes. Q14 David Howarth: How do you understand that relationship? Lord Goldsmith: In that particular case, he told me that his decision was that he should not continue with the investigation in the light of the information that he had and, as I have said very openly and came to the House of Commons (as the Solicitor General did, too) to say I agreed with that decision. Not quite on the same grounds that he had because I had looked very carefully at the case. I had spent some three days with the investigators from the SFO, I had taken independent legal advice myself and I did not actually think the case was going to get anywhere. I did not think that it was right that we subject this country and the people in this country at risk, serious risk, of national security for, in the Director's view, an uncertain case and in my view a case which would not actually have got anywhere. Q15 David Howarth: That takes us on to the public interest part of your thesis. Just an aside, I think at one point the Government was suggesting on that particular case that there was some sort of balance to be struck between the rule of law on one side and the public interest on the other. I gather you have now renounced that position? Lord Goldsmith: I have not renounced it because it was never my position. Let me just be clear about this, because the SFO, when they made their decision, announced it. It was a market-sensitive decision, it affected the market considerably and there were all sorts of leaks so they moved very quickly to announce it, which is entirely understandable. That is also why the Solicitor General and I came quickly to the House. We had to wait until after the markets were closed, but we came at that stage. In their press release the SFO used an expression, they said that it was necessary to balance the rule of law against wider national considerations. I know what they meant by that. It was necessary to balance the desirability of bringing a prosecution, which is generally what you do, against other considerations. That is a perfectly proper balance. I come back to that. I think with hindsight it was an unfortunate expression because it could be misunderstood and that is why in the debate last week I was very happy to say that if anyone takes that as meaning that we or I think that you can set aside the rule of law for reasons of expediency or general interest, that is absolutely not the position. But the rule of law does recognise that in all prosecutions the prosecutor will have to take account of two factors, the sufficiency of the evidence and whether the public interest is in favour of prosecuting or not. That is set out in the code for Crown Prosecutors - I see that you have a copy there - which has been always referred to. It is laid before Parliament and it is required by statute to be provided, and that has always required those two considerations, so there is nothing wrong with looking at whether the public interest is in favour of prosecuting or not. Q16 Chairman: You took a different view from the Director of the Serious Fraud Office as to whether the case could actually have a chance of being successfully prosecuted? Lord Goldsmith: Yes, I did. The case had been investigated for two years. A lot of material has appeared in the press about invoices, about payments which were being made by BAE, allegations of a slush fund. That really relates to the period before 2002. It was in 2002 we changed the law in any event to make corruption of an overseas official clearly an offence. The SFO's view was that they could not prosecute in relation to any of that anyway. I agreed with that. Then there was a question about the future. They said it would take a further 18 months to investigate. I had for quite some time raised with them, because this was not the first time the case had come up, concerns I had about some difficulties which I believed would exist in prosecuting that case. I raised them and I said, "You are going to have to deal with that issue," and then we get the case back again but there still is not an answer to that issue, and indeed the evidence which is emerging to my mind makes that an insuperable problem. So I did not believe that the case would be able to go ahead. I think it is right to look at some of those issues because I stand at the Despatch Box from time to time on cases which have failed and I have done it in the House of Lords on the Jubilee Line, on the Burrell case and on Trooper Williams and, as I have said before, if people do not actually say, "Couldn't you see this coming?" that is the sort of look in their eyes. I do think, therefore, there is an important reason to stop and look, and if it is clear that actually it is going to be insuperable at the end of the day you need to take that into account at that stage. Q17 David Howarth: Coming back to the public interest, just in broad terms were those issues legal issues or issues of fact? Lord Goldsmith: In a sense they are both. They are fundamental issues which one has to handle in a corruption case, and there are particular difficulties about whether it would have been possible to deal with those in the context of the particular constitutional position in Saudi Arabia and the particular circumstances. Q18 David Howarth: It has been suggested that there is a problem with the definition of "corruption" as opposed to establishing facts in a trial. Lord Goldsmith: There is a proper and lively debate about how the law of corruption should operate in this country. We have worked on the basis of a definition of corruption which requires you to have a principal and an agent. So what you are really saying is, is the agent acting disloyally to the principal? The normal way you do that straightforwardly in an ordinary corruption case is that you call the managing director to say, "Of course I didn't authorise the sales director to use £50 notes," or whatever it may be, "and he was the agent for the company." You need to have those two. There is a case for whether that is the right way for our law. The Government put forward a bill. It was essentially torn to pieces on pre-legislative scrutiny and we have not yet brought anything else back. Q19 David Howarth: Coming back to the point about public interest, and we may as well stay with the BAE "S" case since it is fresh in everyone's mind, how do you go about deciding what the public interest requires? There is this thing called the Shawcross exercise and perhaps you could tell the Committee what that involves? Lord Goldsmith: Absolutely. The public interest can often not require any external views whatsoever. For example, it may not be in the public interest to prosecute someone for an offence if it is likely to not add anything to the sentence because they are already facing a lot of other serious charges. It may not be in the public interest to prosecute because someone is very ill. You may go to a doctor to find out if that is so. Occasionally there are public interest considerations where it is legitimate to seek the views of other ministers, not on whether there should be a prosecution but on what the public interest is. For example, if you can see that a prosecution might require the disclosure of sensitive information you need to know how damaging the disclosure of that information might be. So you would need to know, perhaps from the Defence Secretary or the Home Secretary, or the Prime Minister or the Foreign Secretary what the implications for the disclosure of that information would be. As Sir Hartley Shawcross said in a very famous answer in 1951 (that is why it is called "the Shawcross exercise"), you go to ministers and say, "Advise me, please, as to your view of the public interest considerations." It is then for the prosecutor to decide, to form his own judgment, but you need to be informed by those who know best what the public interest considerations are in that case. Q20 David Howarth: But which ministers do you go to and how do you decide which ministers to go to? The issue in the BAE case, for example, something which has been raised in the Commons, is that apparently you did not go to the Secretary of State for International Development? Lord Goldsmith: That is right. Q21 David Howarth: How did that decision, which presumably is your decision alone, come about? Lord Goldsmith: We did go to a number of other ministers, that is quite right. We did not go to the Secretary of State for International Development. I do not believe he could have added in any way to the knowledge on the national security considerations, which were the problem. That is not his area. He could have told us that we have a commitment to fighting corruption, but I knew that and I knew that there was a public interest in doing that in any event, and so did the Director of the Serious Fraud Office, who after all has been working on that issue and has been setting up special arrangements to deal with it. So I do not believe that he actually would have been able to add to the sum of knowledge which would have helped the Director reach his consideration. Q22 David Howarth: Another matter which has come up quite recently is the suggestion that there is a number of Shawcross exercises in that case and you went out to ministers on several occasions. I was just wondering how that would work. For example, was there ever a time when the advice coming back from ministers, or from the Intelligence Service or the Security Service, was that national security was at risk but nevertheless in the exercise of your independent judgment you decided that the investigation should nevertheless continue, but eventually you decided differently? Lord Goldsmith: No. There was a developing situation, as I have indicated in an answer I have given. There was a Shawcross exercise something like a year ago, but the public interest that was put forward was the effect on this country of not being able to succeed in getting a new contract for BAE, because at that stage there was consideration of that contract. Q23 David Howarth: Is there not a problem with that as a public interest because that would violate Article V of the OECD Convention? Lord Goldsmith: Which is why the investigation went on. I agree with you about that. So there was an evolution of this. Q24 David Howarth: A later Shawcross exercise asked about national security. Lord Goldsmith: Yes. Q25 David Howarth: You are very clear in your own mind that national security and international relations are quite separate, because naļvely one would think that they are at least overlapping? Lord Goldsmith: Do you have in mind the terms of Article V of the Convention? Q26 David Howarth: Yes. Lord Goldsmith: My view in relation to that is very clear. I do not believe that the OECD Convention prevents any country which has signed up from having regard to something so fundamental as national security. I do not believe we would have signed up to this Convention if we believed that we could not have regard to national security. Put on one side commercial considerations, ordinary diplomatic relations, I do not believe we would have signed up to it. I would be astonished if any country would have signed up to it on that basis and there is absolutely nothing in the Convention which says, certainly explicitly, that you cannot. So I do not believe that national security is something you cannot take into consideration at all. Q27 David Howarth: The problem with that is that a definition of national security which is that broad would undermine the international relations part of the Treaty itself? Lord Goldsmith: I do not know, if I may say so, why you regard it as so broad. The details -and I have set this out in a letter to the Leader of the Liberal Democrats and to other people as well - why Saudi Arabian cooperation in the counter-terrorism field is regarded by those who understand it as so important. That is not a broad definition of national security, that is really quite a narrow definition of national security, recognising security to citizens in this country and to others within our shores. Q28 David Howarth: But it is certainly part of international relations as well and it is also not what the prosecutor's code says either. Probably this is the right time to raise that point. The prosecutor's code talks about information coming out rather than cooperation, which is a different thing. Lord Goldsmith: The prosecutor's code makes it clear the public interest factors it sets out are not exhaustive. I have absolutely no doubt at all, and it does happen, that having regard to the effect on national security is a proper public interest consideration, and it is a consideration which has to be borne in mind by prosecutors when, for example, you were considering a prosecution which, as I say, would regard a disclosure of information or something which would actually affect national security. Thank goodness there are not that many cases of that sort. Q29 David Howarth: But you think the code needs to be amended? Lord Goldsmith: I do not think it needs to be amended at all. As it says in terms, it sets out a non-exhaustive list and it does specifically refer to national security. Q30 David Howarth: But not in that way? Lord Goldsmith: Well, it is an example. It makes absolutely no sense to say, which is the normal case, "If it would involve revealing information which would be damaging about national security then you don't go ahead, but if it in itself damages national security, you do." That would be absolutely absurd. Q31 David Howarth: The reason this distinction seems to matter is that it is the cooperation version which is in fact part of international relations, perhaps unlike the revealing information version? Lord Goldsmith: I absolutely stand where I am in relation to this and where the Director is. The Convention took a very important step, which we entirely support, that countries should not have regard to commercial considerations in determining investigation or prosecution and what I would term "general relations" with another state. It is no use saying just, "Well, if we prosecute in this case they will get upset with us," in a sort of very general sense, but I do not accept that we would have signed up to that Convention if the effect was that there is a case in which national security would be put at jeopardy - the way, for example, the Prime Minister has spoken about it - and that is something that we simply cannot regard. We have to say, "We have signed up to put our citizens' lives at risk," particularly against an uncertain, or in my view a case which would never have gone ahead. Q32 Jeremy Wright: Lord Goldsmith, can we turn to some of the other tensions which are inherent in the different aspects of your role. Part of your job is to be an adviser on the law to members of the Government and another part of your job is to be in effect the supervisor of prosecutions. How do you resolve the tension which would arise in circumstances where the potential subject of a prosecution would be a member of the Government or a supporter of the Government? Lord Goldsmith: Let me be very clear, I am not an adviser to members of Government in their personal capacity. Q33 Jeremy Wright: But your job is to give legal advice to the Government. Lord Goldsmith: Not to any individual member. I know very well what you have in mind, but it is no part of my responsibilities to give advice to an individual member of the Government about his or her personal position. For that they would have to go to other lawyers. It is certainly not my job. Q34 Jeremy Wright: So there is no tension in that, in your view? Lord Goldsmith: No, absolutely not. Q35 Jeremy Wright: Let me turn to another one. You gave a very interesting lecture to Birmingham College of Law in November of last year. Lord Goldsmith: Thank you for saying that. Q36 Jeremy Wright: We have all read it. We know how interesting it is. You identified a number of different things which again were facets of your role. One of the things you said was that you share political "collective responsibility" with the Home Secretary and the Lord Chancellor for criminal justice policy and the delivery of criminal justice, but you have also said - and not just in the course of that lecture - that it is very important in your role to avoid any party political considerations. Is there, in your view, any tension between those two things, because if you are responsible for the delivery of policy is that not in a sense a political consideration which you should be avoiding? Lord Goldsmith: I am not sure I said "political collective responsibility" but I will not quibble in relation to that. That is not usually the language which I use, but I do not see that there is because I have a responsibility ultimately for the prosecutions in this country. That is a key part of policy, public policy in one sense because it is what protects our citizens and our communities. I do not see anything inimical in trying to make sure that the way our justice system works is as effective as it can be. I do not think that working to see that we have speedier court hearings but fair court hearings is inimical to that. As I have done with the prosecutors, for example, seeing that they are more responsive to the needs of communities, which is why we have anti-social behaviour prosecutors who can go out to communities and help to protect them. I do not see that that is inimical in any way. I do not think it is inimical in any way that we now have a specialist division of counter-terrorism prosecutors who are able to make independent but informed decisions about terrorism cases and take them through the courts. So I do not see that distinction. I think it is helpful that when it comes to the formulation of criminal justice policy there is somebody in the circle who, first of all, has this relationship with the prosecutors who are at the front line and know what works, what does not work and what the problems are, and secondly, who is able to bring considerations - and I do believe it is part of my role - on the rule of law as to how we should be proceeding in relation to criminal justice. I think it is better to be on the inside than on the outside. Q37 Jeremy Wright: In many respects there are various different facets to your role, and you have been clear about that, and they all overlap to a degree, and we all understand your arguments in that respect, but would your life not actually be easier if there was separation into different people of all of these different roles so that there was no suggestion that there might be an unnatural and undesirable overlap between these different aspects? Lord Goldsmith: I think this is about the office and not about me in any event. Whether my life is easy or not is not really the point. Q38 Jeremy Wright: I am talking about any holder of your office, not necessarily you. Lord Goldsmith: I understand. It is quite a difficult job. One of the reasons it is quite a difficult job is because there are difficult decisions to be made, but somebody has got to make them. Q39 Chairman: That sounds a bit like the Prime Minister's language there! Lord Goldsmith: I am certainly not putting myself at that point at all, but just to take BAE as an example, there was a difficult decision to be made about national security and this case. As it happened, it was the independent prosecutor who made it, but someone has got to make that decision and separating the role differently does not get away from that problem; someone still has to make it. My view - and it is the view, I note, of those who have served in this office before and they say it very strongly - is that it is better that the person who may be faced with those decisions is inside rather than outside, has this very important accountability to Parliament, and it is a very considerable banner and light that one has in front of one, that one will have to explain decisions to Parliament, and I think it is better to do that. I think also on the policy side it is better. To take the example of the prosecutors, when I came into this job I believe we had a prosecution service, the Crown Prosecution Service, which had never really fulfilled its proper functions and its proper possibilities. It was created in 1986 as a good idea, but it was under-funded, it was under-managed, under-resourced and very, very lacking in confidence. I believe, not just because of what I have done, although I have done a lot of it in the last five and a half years, it is now a service which is confident, which has increased resources and which has increased powers and responsibilities. The prosecutors recognise their responsibilities to the communities, they are visible to communities, they take account of communities' concerns, they protect victims in a way that did not happen before and they deal with specialist prosecutions. I do not believe that those changes to the prosecutors would have taken place unless there had been someone in Government, able to talk to ministers from the Prime Minister down about the need to find those resources and the need to provide those powers and responsibilities, to debate with the Home Secretary the proper allocation of responsibilities between police and prosecutors. I do not believe that would have happened and that is another reason why I believe having someone in my position on the inside has actually been beneficial. There are other reasons which I set out. Q40 Chairman: Could not the minister of justice have been doing that, amongst other things, while you or some other person - well, I will not say you because you are actually a politician now - Lord Goldsmith: I am not sure about that actually, but anyway - Q41 Chairman: Well, we are quite sure. You take the Labour Whip in the House of Lords. Lord Goldsmith: Well, if that is the definition, yes, of course. Q42 Chairman: A minister of justice could have been doing the very job you describe for the Crown Prosecution while somebody else, not a politician, was taking those prosecutions? Lord Goldsmith: I do not think it would have happened. I do not believe it would happen. The prosecutors are quite a small group compared with the demands of prisons, the police and courts. Q43 Chairman: They are not doing very well financially either at the moment! Lord Goldsmith: Well, I have done reasonably well for those I have been looking after is all I can say. Q44 Jeremy Wright: I think the Chairman's argument is not that it is not right to have a champion for the CPS in government, able to speak to government with the authority of a minister, the question is, why does that have to be the same person as someone who deals with legal questions and legal decisions which part of your job also involves? Why does it have to be the same person? It is not why does it have to be a person but why the same one? Lord Goldsmith: My own view is - and I have thought very hard about these questions over a period of time, not just as a result of recent comment but over a period of time and that is reflected to some extent in what I have said publicly about it - there are advantages and disadvantages in all arrangements that one can think of, and I certainly do not suggest that the present arrangement is not capable of some improvement and I suggest some in the paper which I have put forward. But my judgment is, having done it - and it is the judgment of those who have done this before me - is that the advantages outweigh the disadvantages. Q45 Mr Tyrie: We have, I think it is fair to say, a considerable amount of controversy and some might argue a collapse in public confidence in aspects of your role. We have had the Iraq advice controversy, we have had the BAE advice, a decision of controversy, and then there is the "cash for honours" issue. How do you think we can restore public confidence in the office of the Attorney General? Lord Goldsmith: I think there is actually a much broader question about confidence in politics or parts of politics at the moment, and I think we are affected by that. We will all have our views on the Iraq conflict. I think there has been a great concern from many that the statements which were made, the belief that there was about the existence of WMD did not turn out to be the fact. It was not actually part of my advice, but I think it has coloured the whole of the debate in relation to this. I think in so far as what you term as "cash for honours" I have been clear as to what would happen if a question was referred to me. Q46 Mr Tyrie: Why do you not just explain what that is now for the benefit of the Committee? Lord Goldsmith: I will, absolutely. If a question is referred to me - there was one yesterday which was not, and there is absolutely no reason why it should have been, but if it is referred to me then my office will appoint independent leading counsel to advise and, I make it clear, in the event that there is not a prosecution then I will make public that advice. That will mean that the public will know openly, it will be transparent, what the reasons are and why. Q47 Mr Tyrie: You said in your earlier original letter and statement on that that you would make public the conclusions of that advice. Are you now making it clear to us that you will publish the whole of that advice? Lord Goldsmith: I just want to look to see precisely what I said. What I had in mind at the time was that it is possible - this is all hypothetical, absolutely, and I do not know anything about the state of this ---- Q48 Mr Tyrie: But my question is quite straightforward. Lord Goldsmith: I appreciate that, but I really must make that point clear. Q49 Mr Tyrie: Are you now saying that you will publish the whole of the advice which you were given? Lord Goldsmith: The whole of the advice which relates to the decision not to prosecute. What I had in mind is that somebody might write an advice which deals with more than one person in relation to which there could be a prosecution. I do not think it would be right to publish that. That might be prejudicial. Q50 Mr Tyrie: I think what you have said will be perceived as an advance on where we were, and a welcome one, and I am grateful for that. There remains the question to which Helena Kennedy has alluded with respect to the Iraq advice. On the Iraq advice she said that there was only a couple of lawyers who would have concluded that going to war without a second UN resolution was legal. Whether that is true or not ---- Lord Goldsmith: It certainly is not. Q51 Mr Tyrie: Whether or not it is true, let us set it to one side. There is a public confidence issue here with respect to the person you choose to supply this advice. Will you undertake also to consult Opposition parties in an attempt to secure prior agreement on whom you will consult and from whom you will seek that advice? Lord Goldsmith: I have not thought about that before, but I am perfectly content to do that. Q52 Mr Tyrie: I am very heartened by that. I think those are two very valuable reassurances. We have been discussing your accountability to Parliament in a more general sense. Do you think it is reasonable that you can refuse to come before a select committee of the Commons? Lord Goldsmith: I do not believe I ever have. Q53 Mr Tyrie: I did not ask you whether you have refused, I asked you whether you think it is reasonable that you are constitutionally capable of refusing? Lord Goldsmith: Well, I have always come when I have been invited to a Commons select committee. Mr Tyrie: I will ask the same question a third time. Do you think it is reasonable constitutionally that you can refuse to come before a select committee in the Commons? Q54 Chairman: Has nobody told you that you could refuse? Lord Goldsmith: If they had, I still would have come. The reason I am putting it that way is that I do not quite understand what the reason is for this constitutional position. Anyway, the position as far as I am concerned ---- Q55 Mr Tyrie: You are a Member of the House of Lords and therefore - I never thought I would find myself instructing the Attorney General ---- Lord Goldsmith: On parliamentary procedure, perhaps. Q56 Mr Tyrie: Maybe that points to what I am moving towards saying, which is that I wonder whether this is not an aspect of the risks of having somebody in an office of such political sensitivity who, as far as I am aware, has never been involved in an election, has not been a Member and is not at the moment a Member of the House of Commons? Lord Goldsmith: I certainly have not been elected to office in this House. I have been involved in elections, but they are a different form, not general political elections. I entirely accept the point. I am not a Member of the House of Commons. That is the way things have turned out and it is the Prime Minister who chose me to perform this role. I think it is a very serious point and I want to make clear what my position is. I do not think it would be right, whether constitutionally possible or not, for an Attorney General, wherever he comes from, to refuse to attend before a select committee of the House of Commons. I make that very clear. I think it would be right to do so, and indeed part of what I have actually said in this memorandum is to suggest the possibility of a more regular communication either with this select committee or with another select committee looking particularly at the role of the law officers. Secondly, at the time of taking this office I even wondered whether it was possible in some way to be able to be, as it were, accountable to the House of Commons. There are jurisdictions in which ministers, wherever they are, are capable of being summoned before either House. I entirely understand the Commons takes a view about only hearing from its own Members. Q57 Mr Tyrie: Both Houses do. Lord Goldsmith: Well, whether both Houses do or not, I raised the possibility, as I say, shortly after I had taken office as to whether that would be possible. I was told it was not possible, so no standing at the Bar of the House of Commons and dealing with issues from there. Q58 Mr Tyrie: You have suggested creating a department headed by you accountable to a select committee directly. Is not part of the problem going to be that some of the information the select committee will want to see in order to assess whether you are doing a good job is the very advice which is never going to be available? Therefore, do you not think that we need to put in place arrangements where ex post facto this advice is made available and that where still there may be sensitivity that the government perceives, a mechanism is found where a group of parliamentarians, probably from that committee, can read that information in camera and cross-examine you in a private session about that information? Lord Goldsmith: I think one would have to look absolutely at both constraints on certain information - there could be all sorts of information, information about individuals, information about national security, all the rest of it - and how one actually dealt with those. I think those are very proper things that one would want to look into. There are arrangements which exist already within the select committee machinery where certain committees do look at certain material which is not publicly available and they do it on particular terms. Q59 Mr Tyrie: You were thinking in particular of - Lord Goldsmith: I was thinking of the ISC, for example, the Intelligence and Security Committee. Q60 Mr Tyrie: I am very concerned by this cross-examination because the Intelligence and Security Committee is not a select committee of Parliament. Lord Goldsmith: Forgive me. Chairman: I have an interest as a member of it. Mr Tyrie: It cannot come to its own conclusions and publish them independently of prior scrutiny and censure by the Prime Minister. Therefore, it does not provide the same level - and indeed the reports are, whether one calls them censured, redacted, whatever you like, abridged or redacted from time to time. So that does not give us the full assurance that we would like. You referred to security ---- Chairman: I must not allow a question to pass on something which I ought, in my position, to correct, which is that of course the committee is entirely free to come to its own conclusions. Mr Tyrie: It is free to come to its own conclusions, but when it publishes them the Prime Minister ---- Chairman: I do not think it is helpful for us to have a debate across the floor of the Committee about facts which can be established. I think you had better put a question to the Attorney General. Q61 Mr Tyrie: I did not begin the debate, but I will come to the point I wanted to ask, which is that you referred to the fact that there were security issues behind the decision not to go ahead with the BAE investigation, issues of national security? Lord Goldsmith: I did not say they were behind the decision, I said they were the reason for the decision. Q62 Mr Tyrie: They were the reason for the decision? Lord Goldsmith: Yes. Q63 Mr Tyrie: Why not refer those to the Security and Intelligence Committee? Lord Goldsmith: Well, nobody has made that suggestion so far. If the suggestion is made, if that was something which the Security ---- Q64 Mr Tyrie: Perhaps the Chairman will take that away as a thought. Lord Goldsmith: Maybe, but I must be very clear about this. This is not my intelligence information. This is not my national security assessment, and there are others from the Prime Minister down who would have a view in relation to that, but if I may come back to the point. Pick me up on parliamentary procedure in the House of Commons by all means, but the fundamental point - and I hope it was helpful - was actually to come to this Committee and say, first of all, I think in the debate about whether you want some civil servant dealing with these issues or you want somebody within Parliament, who is accountable to Parliament, my judgment is that being accountable is better. Think of the implications otherwise. The questions you are putting to me now, the questions which have been put to Mike O'Brien in the House this afternoon, the questions which have been put to me in the House of Lords, none of those would have been put about BAE if there had been a civil servant who was responsible for this. The second point is that I recognise there are questions about whether or not there is enough accountability and I say that here is a mechanism one could look at, which is to have a select committee which is in a position to have a more regular communication with the Attorney General. You say to me there may be stuff which you cannot reveal. You are absolutely right. I respond to that by saying, then let us look at whether it would be appropriate to have mechanisms for doing that and what those could be. I thought it might be helpful to refer to the ISC as an example of how things are done. I am sorry that you do not think it is. Q65 Mr Tyrie: I do think that we have quite a serious problem with the perception of your office publicly. We have a former Solicitor General who has said that you should publish advice. We have the current Lord Chancellor who says, and I quote, that the role of the Attorney General in Government "is no longer constitutionally sustainable" and we have a current controversy raging where all public confidence, I think, has probably seeped out of the idea that an individual appointed by the Prime Minister may have a say in whether Members of the Government are prosecuted. When you put all that together, I think we have quite a serious problem, do you not? Lord Goldsmith: Let me respond, because in relation to the last matter you put to me before whether I would be happy to consult the Opposition in relation to the choice of counsel. It was an idea which had not occurred to me and I am happy to agree with it. Did I discuss with the Shadow Attorney General from the Conservative Party what I was going to do in relation to that particular aspect? Yes, I did. Was he content with the conclusion I reached? Absolutely. Q66 Mr Tyrie: I was asking a more general question. I have noted what you said on that other point, Lord Goldsmith, and I have said that we welcome it very much. Lord Goldsmith: But you raised it again, and what I am saying is that although you put these points forward and you make observations about what you think the position is, I am saying that when it comes to these issues I do discuss with Opposition spokesmen what the issue should be and they are supportive, I believe, of the difficult decisions which have to be made, at least from the Conservative Party, the main Opposition party. Q67 Mr Tyrie: My question to you, though, was a more general one: do you think that we have got now a serious problem of a more general sense that we need to address with respect to your office? Lord Goldsmith: I do not. I do not agree with the remarks you have quoted from the Lord Chancellor. I think there is a very important issue which I have tried to bring out before this Committee about whether you want accountability or whether you want some distance and separation. I think that is a key point. I have expressed my view about it. Other former holders of this office like, I believe, the Shadow Attorney General from the Conservative Party, take the view that that accountability is very important. Q68 Mr Tyrie: You are making it clear that you completely disagree with the Lord Chancellor and that he is barking up the wrong tree? Lord Goldsmith: I have expressed my view about these key issues in relation to accountability. I have said in relation to legal advice, which is the other issue you have identified, that the next time (if, God forbid, it happens) there is a question of military action it would be for the Prime Minister of the day to determine - and I have a very strong prediction as to what would actually happen (it is not my call, it would be his) - whether or not advice should be made available to Parliament. I have also said that I think it is very important that the basis of it, in any event, should be fully explained. Q69 Mr Tyrie: It sounds as if you are saying you are flatly contradicting the Lord Chancellor. You think that the role of the Attorney General in Government is currently constitutionally sustainable. In fact, you seem to be going further than that, or implying that you are going further than that, saying that it is really a very good arrangement? Lord Goldsmith: I have set out in the paper the arguments. I have also made certain suggestions for consideration as to how things can be dealt with. I think that is the positive side of what I have come to do. I welcome the debate, but I do not think I have come here simply to have disagreements with fellow ministers. Q70 Chairman: You do recognise that as far as the public is concerned there is a considerable difficulty in establishing or re-establishing confidence in the notion that somebody who is in a senior political position (and by definition is a Member of the Government, committed to supporting it) is required to make decisions in which some element of distance is needed because they may be decisions on which he could wrongly be influenced by his position in the Government? That feeling is quite strong amongst members of the public. Lord Goldsmith: It is really important to make it clear, which I have sought to do, that my duty is to the law and not to party politics or party loyalties, and that is what successive Attorneys General have always said. We always remember the one incident in the 1920s when that did not appear to be the case. That is, as it were, emblazoned in burning lights in the Attorney General's offices. I knew about it when someone else took that office, almost on the first day. That is the primary duty and that is what we carry out, and former Attorneys General, and I believe not only that it is possible but that we do in fact reach that conclusion. I make decisions which my colleagues do not agree with. I tell them there are things that they cannot do. They accept that, even though it may be disadvantageous to the Government, to the party, that they cannot do what they want. Everyone knows about the things I have said they can do because that is the one big thing that is there very much in the public, but people do not know about the things that have been said that cannot be done. Q71 Bob Neill: Mr Attorney, is not the problem this, though, that despite the very best endeavours and the best integrity of yourself and previous and successive Attorneys General the public will never be convinced of that situation? They will never be convinced of that situation unless either all the advice which you give is disclosed or there is a construct arrived at in which the person who defies public interest is not a Member of the Government but perhaps accountable to Parliament? It must be possible to have a construct which gives that situation, is it not? Lord Goldsmith: I do not believe you would have the same degree of accountability at all. Q72 Bob Neill: In what sense? Lord Goldsmith: You would not be able to summon (as has happened to the Solicitor General and to me) the law officers to come into Parliament on so far three occasions on BAE in both our cases, to make statements and to answer questions. Bob Neill: Are there no means by which Parliament can set up officers who are able to be summoned or who are held to be accountable through other means? You do not think so? Q73 Chairman: Not parliamentary ombudsmen necessarily, but accountable to Parliament in the duties they carry out? Lord Goldsmith: I think, if I may say so, the accountability is in a very different way from actually responding directly to questions from Members of both Houses in debates in Parliament and oral questions. Q74 Bob Neill: I understand where you are coming from, but the concern is this, is it not, that ultimately somebody has to be the arbiter of public interest and can you ever convince the public in the current circumstances, the way things develop, as constitutional arrangements do, that somebody who is a member of any political party can do that with the confidence of the general public, despite your best endeavours to do so? Lord Goldsmith: If I may say so, stripped to what you have actually said, it is an astonishing proposition because the public elect politicians in order to act for the public good and in the public interest. To say that elected politicians - and I am not even elected - cannot be trusted to judge what the public interest is I think is surprising. Q75 Bob Neill: I think, with respect, Mr Attorney, you know full well that I am using a very narrow legal definition of the public interest for these purposes and not a more general one. I am sure you know that. Lord Goldsmith: I wanted to make the point, the proposition that people can be trusted, I believe, to be able to see what the public interest is. Q76 Bob Neill: But you would agree, I think, that the definition of people who can be trusted, I believe, to be able to see what the public interest is, public interest in relation to the person who initiates prosecutions, is a particularly specific and important one? Lord Goldsmith: Can we just take it a stage further, because the only case in which the public interest has arisen in a way which is controversial is in relation to BAE, which was a decision by the Director and not by me. Q77 Bob Neill: I understand that, but a decision by the Director after you had made clear, I think it is fair to say, your advice or your view as to what the public interest was? Lord Goldsmith: No, I had not. Q78 Bob Neill: You did not tell the Director your concerns about the public interest? Lord Goldsmith: No, the Director had the information. You look at me in a surprising way, but you are wrong about this. The Director formed his view. He actually formed his view after meetings (which I had not attended) with our Ambassador, and of course seeing the information that I had seen. I did not press him to reach that view. I did not even recommend to him that he reach that view. He came forward with it. Q79 Chairman: You reached the same conclusions for entirely different reasons? Lord Goldsmith: No, I did not say entirely different reasons because national security was important, but he came to me and he said that this was the conclusion he had reached. This is what he believed. Of course I knew the basis of the information, but he said that he was not pressured. He said that this was all done perfectly professionally and I do not think it is right to let suggestions that that was not the case go without contradicting them. Q80 Bob Neill: Can I ask more generally, are there ever circumstances in which you express a view to the Director as to whether a prosecution should proceed or not? Lord Goldsmith: Certainly. Q81 Bob Neill: Have there ever been instances where the Director has been minded not to proceed with a prosecution and you have expressed a view that the prosecution should proceed? Lord Goldsmith: Now you are talking about the Director of Public Prosecutions. Q82 Bob Neill: The prosecuting authority. Lord Goldsmith: We have had discussions about cases from time to time and we have always reached a common view in relation to them. Q83 Bob Neill: Has that sometimes involved the prosecutor coming to your view? Lord Goldsmith: I can think of one or two cases where it has, not controversial cases in that sense at all, but equally there have been cased where I have raised questions about cases, and that is part of the role. Part of the role of superintendence is that somebody comes and you look at it and you say, "Well, just hang on a second, what about this? Is that right or not?" and you debate that, and sometimes they will say they will get further advice from outside and they will come forward and you have a discussion about it. Q84 Bob Neill: So there are discussions which start off like that, where the Director says, "I don't think there is enough here," and you think there is and after a discussion sometimes the Director may say, "Okay, yes, I'm persuaded. I think we should go ahead"? That is perfectly feasible? Lord Goldsmith: Or the other way round, he will say, "I think you should go ahead," and I am saying, "Is that absolutely right? What about this? What about that?" and at the end of it - I can think of some examples - I have said, "Well, all right, you go ahead." Q85 Bob Neill: You are saying there have been examples of that? Lord Goldsmith: Absolutely. Q86 Bob Neill: Okay. Finally, just to finish on BAE, because I do not want to spend all the time talking about that, what was the last stage at which prosecuting counsel was involved in the BAE considerations and his advice sought? Lord Goldsmith: I do not know precisely because leading prosecuting counsel was involved in another big trial, but I had the benefit of seeing advice and having talked to him on previous occasions, and also having received independent advice myself from very senior and experienced criminal counsel Q87 Bob Neill: Separately from the counsel who was instructed at the time? Lord Goldsmith: Yes. I had a view and wanted to have that view checked to see if there was something I was overlooking on this, and I was not. Q88 Bob Neill: Again just in terms of process, is that a common thing for you to do as Attorney General, to ask a separate independent leading counsel for advice? Lord Goldsmith: Yes, it does happen. Q89 Bob Neill: Frequently, or occasionally? Lord Goldsmith: I do not think it has happened frequently, but it has happened in a number of cases, and I think it is a very proper thing to do. Q90 Dr Whitehead: The talk in the air at the moment is of a potential split in the Home Office and the creation of a department of justice. What do you think would be the impact of such a change on your office and also for law officers in general, and do you think that were there to be a department of justice, for example, the Attorney General's Department might be associated with that in some way or would it remain separate? Lord Goldsmith: Apart from dealing with the merits of that which is in the air overall, which is a matter which is subject to discussion within Government at the moment, I think there are three points to make. First of all, we have operated a system of, call it trilateralism, in which the three who have a responsibility in relation to criminal justice - the Home Secretary, the Lord Chancellor and I - have together been involved with chief officers on the National Criminal Justice Board. We have collaborated in relation to considering changes to criminal justice policy and delivery. I think it is very important that that should remain because that is the way that one gets the best joining together of the different agencies involved in the criminal justice field. Secondly, I think it is enormously important that the prosecutors are not brought within any ministry of justice, if that is what is created. I think it is very important that they continue to have a minister who champions them but who is not distracted, as it were, by championing other parts of the criminal justice system, and who also supports them and their independence. Thirdly, there would be questions raised, which are really for discussion within Government, about whether, if there is a redistribution, there are functions which might more naturally fit even with the Attorney General's office than with any other office, but as I say, those are matters to be debated within Government. What I certainly do not consider, and nobody is suggesting, is that somehow the Attorney General's office falls within some ministry of justice. Q91 Dr Whitehead: I would concur with other Members of the Committee, it was a very interesting lecture which you undertook for the Birmingham College of Law in November. You stated your belief that "the future constitutional role of the Attorney General ... should comprise the responsibility for a serious Government Department with clear objectives which include upholding the rule of law, a duty to the Crown and the guardianship of the public interest and the resources to fulfil that role." That fairly clearly suggests to me that you have in mind what you term as "a serious Government Department" in its own right. What would you define as "a serious Government Department"? Lord Goldsmith: Can I just pick up on one point, if I may, because I thought it was actually the reason why in the first instance this Committee was interested in seeing me. Q92 Chairman: It was, indeed. Lord Goldsmith: Absolutely, what is the role of the Attorney General in relation to the rule of law. There cannot conceivably be the position that there is only one minister in Government who is concerned with the rule of law; indeed, I am not sure I would want to be a member of a government in which every other minister thought he was licensed to be cavalier about law, and indeed all ministers are responsible themselves for that, but I do think the Attorney General has a very important role in relation to the rule of law in relation to advising - and s.19 of the Human Rights Act has been an important part of that - and in other things that are done, taking positions in relation to aspects of policy which conform with my conception of what the rule of law is. But I think you have to have, as it were, the back-up to be able to do that. Q93 Chairman: You could do that now. It would be quite a small Government Department. Lord Goldsmith: But I have increased the size of the Department. I did not have any people with policy background at all in the Department - excellent lawyers, but no Whitehall experience when I started. I do now have a small team and I think that is helpful. In relation to international matters, constantly these days what matters in relation to the prosecution of crime is international cooperation, but we have not really had any coordinated approach as far as the prosecutors are concerned in relation to that, so I have now brought somebody in to be able to help to do that. This afternoon I was chairing a committee which is concerned with access to justice in a voluntary way, what is done in relation to the provision of legal advice pro bono. I have started an initiative in relation to international public interest work, again trying to coordinate the work which is done within Government and the work which is done outside by the voluntary sector. I think these are important parts of what I can do and I think one needs support in order to do that. Q94 Dr Whitehead: So a serious government department would be a department which was under the general heading of the collective responsibility of Government in terms of the discharge of responsibilities within that department, as far as that serious department was concerned, I would imagine? Lord Goldsmith: I would simply put it in terms that I think there are responsibilities which I have to carry out, which I believe - forgive me for coming back to it - it is in the public interest that they are carried out. It needs support in order to do that and I get support in different ways. That is really all I will say. Q95 Dr Whitehead: Would you say that as far as a serious government department is concerned the doctrine of how government departments relate to each other in terms of collective Cabinet responsibility, collective responsibility for the work of those government departments is in effect a form of accountability to the rest of Government in the sense of being held to account for the activities of that department, as opposed to giving an account for the activity of that department? Lord Goldsmith: I think in relation to some aspects of what I do and what is done there is a responsibility in relation more generally to the rest of Government, but in relation to particular functions I am absolutely clear that they are exercised independently and they are not a matter for collective responsibility, such as decisions in relation to prosecution, such as legal advice, such as decisions in my guardianship of the public interest role. Q96 Dr Whitehead: In your letter to the Committee of 7 December you did, I think, make that distinction in terms of stating that "decisions in relation to prosecution means that such decisions are not the subject of the normal cross-governmental decision-making process. It means that the doctrine of collective responsibility does not apply to such decisions." Lord Goldsmith: Yes. Q97 Dr Whitehead: You mentioned earlier to us that you are also accountable to Parliament in all of those roles to the extent that you would not, under any conceivable circumstances that you can think of, for example, refuse to give an account and face questions on that account of your activities? Would you then regard those two roles as the same, or do you regard the roles as differentiating, that is you have one role where you are not subject to collective responsibility but you may give an account to Parliament and you have another role where you are effectively being held to account by other government departments and the collective responsibility of the Cabinet in Government for other activities you undertake at the same time? Would that be a fair description of how you would put your position? Lord Goldsmith: Yes, I think it is. To go back to BAE, which we have talked about a great deal during this session, the decision which was taken was most certainly not a matter for collective responsibility. It was a decision for the Director, but in so far as I accepted and agreed with his decision not a matter for collective responsibility at all. Yet it is entirely right that I and the Solicitor General should seek to explain to the House the reasons for the decision, and that is the accountability which is there. So that is an example of accountability without there being collective responsibility. Q98 Dr Whitehead: Do those duties then overlay each other completely, or are there periods in which you could say, "I am not accountable," and there are periods in which you would say, "I am accountable"? Lord Goldsmith: There are difficulties about certain areas, about what you can and cannot reveal at certain times, and that probably does pick up on the legal advice side, but leaving legal advice aside for the moment, I think I am accountable for all that I do. It is just that in certain areas I am making independent decisions, not subject to collective responsibility, and in others I am not. Q99 Dr Whitehead: Would you accept the distinction between giving an account for certain of your activities and being held to account for certain of your other activities, both of which might come under the general heading of "accountability" but in fact mean different things? Lord Goldsmith: Forgive me, I am not sure I really understand the distinction in the context. Q100 Chairman: I thought you had agreed that there was just such a distinction? Lord Goldsmith: I entirely accept that there is a distinction between areas which are within the field of collective responsibility and those which are not. In relation to those which are not within collective responsibility, leaving aside legal advice, which is a rather special case, I regard myself as accountable to Parliament. In relation to the other areas, in so far as I am acting collectively with other ministers, then we are all accountable for what we do. Q101 Dr Whitehead: With respect, you are not accountable to Parliament to the extent that Parliament could do anything back to you for the information that you are providing to Parliament by way of accountability, whereas when you are exercising a collective responsibility role and being held to account for that, then somebody could do something back to you in relation to that role. It seems to me that there is a distinction there between the two. Lord Goldsmith: Then I am not sure I do recognise that distinction. If I appeared to agree with it before, I should not have done because it seems to me, if I may say so, that when you are considering a decision independently, not as part of Government policy, and you are considering making that decision, the fact that you may have to stand in the House and explain that decision under searching questions seems to me to be a very important part of accountability. Q102 Dr Whitehead: Bearing in mind that in a sense that elision of roles has already been unpacked as far as the Lord Chancellor's Department is concerned, it is not something which might be looked at in terms of understanding those two roles better in terms of the Attorney General's Department? Lord Goldsmith: If by "looked at" you mean discussing them and explaining, absolutely. To some extent that is what I am trying to do today. But in terms of what is the best thing to do about the role, I have been doing the job which I have been given. Others may want to structure things in a different way. It is not my decision whether that happens or not. But I do want to underline, if I may, just two points quickly. One is that the point has been made this afternoon that there are aspects of what I do which have been controversial. That has always been the case with Attorneys General. If one looks back over history it has always been the case, and it is not at all surprising because the decisions which Attorneys General get called upon to make are often in the most difficult and controversial circumstances. The second point I want to make is that notwithstanding all of that, both the courts and Parliament keep giving responsibilities to the Attorney General and recognising that those can be carried out in a proper way. So, for example, it was Parliament which gave to the Attorney General the responsibility for the appointment of special advocates in issues which this Committee has looked at. It is to me that a judge in Northern Ireland recently gave the responsibility of looking into something which concerned him. That is something in which Peter Hain and his Department were involved. He said explicitly that he was providing it to me not as a minister but as a guardian of the administration of justice, and that is what is taking place. Q103 Chairman: You seem to be arguing that you needed a serious government department not because you had identified a number of functions which would be better carried out in the Attorney General's office but because only if one had a serious department could one have enough people at the top to give the range of advice on the general range of government that you would find appropriate. I find that a very odd argument for having a big department. Lord Goldsmith: I never said "big"; you picked up on the word "serious". The Attorney General's office was one simply described as "the Attorney General's Chambers". I think it is right that we should be resourced sufficiently to be able to do the job. Q104 Chairman: You just want a few more people? You are not actually arguing that there are functions currently done elsewhere which might usefully be gathered under the Attorney General? Lord Goldsmith: I think if one is looking in an area in which I already act at redistribution of functions it probably is a good moment to look at whether there are other functions which would be better performed in different places, but that is a matter, I think, for Government to consider. Q105 Chairman: You are very reluctant to put a bid in for any functions at all? Lord Goldsmith: I am not the slightest bit reluctant, I am just not sure this is the place to do it. Q106 Chairman: There is something else Dr Whitehead mentioned which I wanted to pursue with you briefly, which are the changes that have occurred from the 2005 Constitutional Reform Act. Many people argued at the time that the change in the role and nature of the Lord Chancellor profoundly affected the availability of commitment to the rule of law within Government. Both the fact that he was no longer a judge and the fact that he might in the future not be a lawyer, for example, were cited as reasons perhaps to regard the role of the Attorney General as taking over some of the responsibility the Lord Chancellor previously had in Government. The Lord Chancellor is given a specific responsibility and an oath to swear to in this respect, but you still feel, notwithstanding that, that those changes require or almost automatically bring about greater significance in the Attorney General's role? Lord Goldsmith: As you rightly say, it was others who first made that point. Lord Goodhart, for example, made that point in the debates on the Constitutional Reform Bill. It is not the responsibility of the Lord Chancellor to advise on the law and he does not tender legal advice to the Government. It is very important that the Lord Chancellor role is there, and traditionally it always has been, but I have always regarded a part of my role as upholding the rule of law. I am the one who gets called upon to give advice. I am the one who has overall responsibility for supervising Government litigation in which issues about the rule of law constantly crop up. Parliamentary counsel raises concerns about the proprietary or legality of proposed legislation to me, not to the Lord Chancellor. I advise the Legislative Programme Committee on whether there are issues of propriety or not. So I think the role is already extremely important in terms of the rule of law, but I also think - and I think this was the point being made by Lord Goodhart and by some others - that if we were to move to a situation (and we are now in a position where this could happen) where the Lord Chancellor was no longer a lawyer or a senior lawyer, I freely confess I believe it would be important that there would remain a senior lawyer at the heart of Government and the only other candidate for that is the Attorney General. The Attorney General will have to continue to be a lawyer, and indeed a senior lawyer because it is a serious legal job which has to be done. I think that does have an impact and, going back to your question about bids, it does impact on questions about where certain responsibilities might at some stage more naturally fit. Q107 Chairman: When I was first elected to this House both the Attorney and the Solicitor General were in the House of Commons. Now the Attorney is in the Lords it looks unlikely, does it not, given the difficulties of sustaining legal practice as a barrister at the appropriate level while doing a full-time job as a Member of Parliament, that in future there are going to be strong candidates for the position of Attorney General in the Commons? Are we resigned to the fact that it is now permanently a Lords appointment and more often than not somebody brought into the Lords because they are given that appointment? Lord Goldsmith: I was not brought into the Lords because I was given this appointment, I had been in the Lords for two years before I was given this appointment, just for correction of that doubt, nor indeed was Gareth Williams, who preceded me. It will be for Prime Ministers of the day to determine where they can find the people to carry out this role. I recognise the point you make about the difficulty of carrying on a legal practice with the present demands on a constituency MP and that may well have an impact on the size of the pool which would be available. That is why, if I may say so, I think it is important to recognise first of all that I am privileged to be a Member of the House of Lords and I am accountable there. I think strengthening accountability through to the Commons in any way in which that can be done is something which is desirable and having set out some ideas about that and some ideas about the possible change to the oath, or perhaps even a statutory responsibility to try to make very clear what it is the Attorney General does, I had hoped to address some of the questions about the way in which the role can be performed in the future. Chairman: Dr Whitehead has a further point he wishes to put to you. Dr Whitehead: On that point, I note that the number of barristers in the Commons is apparently now down to 34, contrary to the popular belief that it is somewhere over 600. Bob Neill: The number of Silks is even less! Q108 Dr Whitehead: If I could go back finally to the point about your role as superintendent. I do not fully understand how this works, because you described it as a largely consensual relationship, perhaps supervisor in a general sense but nevertheless fairly equal, but there is inherent in the role of the Attorney General a hierarchy, that you have powers which are given to you and not to the DPP or to the Director of the Serious Fraud Office. For example, there are statutes where your consent is required for prosecution, and you have the power to stop any prosecution by nolle prosequi? Lord Goldsmith: Yes. Q109 Dr Whitehead: I was just wondering whether there is any occasion, in your experience, in your relationship with the Directors where you have had to refer to those kinds of powers? Lord Goldsmith: In relation to consent, obviously, because if it is for me to consent then I have to consent. So that obviously is referred to. In terms of using the nolle prosequi power, I cannot recall any instance where with either of the Directors I have, if this is the way of putting it, threatened to use that power, no. You are quite right that ultimately I do have that power. But could I just go back, because we are just picking on one particular aspect of superintendence. Superintendence is much, much wider than this. There is the issue of looking at policy in relation to the CPS and I am constantly meeting with the CPS, with their Chief Executive, with the senior people, looking at the way prosecutors are being trained, how they are dealing with cases generally in the magistrates' courts and policy in relation to the way the job is done is a constant matter of concern. We were picking up on cases, not cases with my consent, cases which are sensitive or difficult where they may come and say, "We're keeping you informed about this case," and I am saying that what tends to happen there is that I will either say, "Thank you very much. There is no issue with that," or raise questions with them, and then that will more normally than not lead to a discussion about it and the reaching of an agreement rather than the exercise of control. Q110 Dr Whitehead: So if you were asked the Jeremy Paxman question, "Did you threaten to overrule him?" you would answer, "That's not the way it works"? Lord Goldsmith: It is not really the way it works with the two Directors, no. Q111 Chairman: Thank you very much, Mr Attorney. We have had some very interesting exchanges. I do not expect you to withdraw your previous offer to come to the House of Commons select committees more often than hitherto Lord Goldsmith: No, not at all. Chairman: And I have both the hope and the expectation that we shall see you again. Thank you very much. |