Select Committee on Justice Minutes of Evidence

Examination of Witnesses (Questions 1-19)


10 JUNE 2008

  Q1 Chairman: Welcome, Mr Smith and Professor Jowell, I think it is welcome back, certainly in Mr Smith's case and your case too, is it not?

Professor Jowell: I beg your pardon?

  Q2  Chairman: Have you been before us before, I cannot remember?

  Professor Jowell: No, I do not think I have.

  Q3  Chairman: Mr Smith certainly has. I wonder if I could start by asking you how far the provisions in the draft Bill represent a significant change in the allocation of functions—

  Roger Smith: You are not going to finish that question, are you!

  Professor Jowell: I sense we shall have some time to think about it.

  The Committee suspended from 4.20 pm to 4.36 pm for a division in the House.

  Q4 Chairman: With apologies for the delay and the ways of the House of Commons. I am going to resume very briefly by saying: has the Government made enough of a difference to its original ideas to ensure that these changes might enhance public confidence in the operation of the functions carried out by the Attorney General?

  Professor Jowell: In respect of the Attorney General's role I do not think there has been significant change that justifies the title that this Bill is one of "Constitutional Renewal"; I think it amounts more to tinkering around the edges. I subscribe personally to the conclusions in the report of the Constitutional Affairs Committee in that respect. I would like to see an independent Attorney General as operates in quite a few countries,; some of them in the Commonwealth—Ireland, India, Cyprus, South Africa and so on—but one has to concede nevertheless that in this Bill there is less opportunity for the Attorney to interfere in the prosecutorial process, and I applaud that, but other aspects of the Bill amount, in my view, to constitutional regression, in particular the free hand that is given to the Attorney in respect of interfering on grounds of national security, without any possibility of a challenge of a court. This is true constitutional regression and in fact is contrary to the fundamental principle of the rule of law. In one other respect I think the Bill is to be welcomed: it provides for somewhat greater parliamentary accountability—an annual report and one or two other things—but in some respects I think even that reform tends to enhance the appearance of a connection between the Attorney and Parliament rather than the other way round, that the Attorney should really be attached much more to the legal system and the law and the rule of law.

  Q5  Chairman: Would it not be clearer if we just set the term aside for the moment because what we are discussing is a bundle of functions some of which, it can be argued strongly, should be exercised independently and some of which do have a more obvious ministerial accountability dimension. An accountable decision to suspend something on public interest grounds sounds like a ministerial decision. Would it not be better if we identified what the functions were and whether they should be exercised regardless of what the title of the office is?

  Professor Jowell: Yes quite. In my view, all those functions could, as in other countries, be performed by an independent Attorney General who is not under the shadow of the perception of political bias. Indeed, it is not only a question of public perception, I think there is a predilection that even the most independent Attorney has to fight if they are a minister—part of the Government, part of the governing party—and at the same time performing the role of an independent lawyer; it just does not work. We have had some very independent Attorneys, but I think they have had to fight against their own political inclinations in order to be so, and we have had some less independent Attorneys over the years.

  Roger Smith: Generally from JUSTICE I would applaud the Government for taking on the issue of the Attorney General, but it seems to me that it has only dealt with one of the issues which is the individual prosecution powers of the Attorney, and it has rather spoiled its approach there by clauses 12 and 13 which give greater powers than the Attorney has now in relation to national security. It does not deal with the issue independence of legal advice and that is a current issue. It does not deal either, whatever you think about it, with the role of the Attorney General as one of the ministers responsible for criminal justice policy. It deals with only one of the three major issues for me and I have problems with how it dealt with the first.

  Chairman: I think this would be a good moment to move to Mr Michael.

  Q6  Alun Michael: I think it follows on the Chairman's question about the separation of powers rather than the function of the Attorney General or the role of the Attorney General. Does the Bill deal adequately with the problem of the separation of powers in respect of the duties of the Attorney General as legal adviser to the Executive?

  Professor Jowell: Not in my view. The separation of powers forbids the executive branch of government from interfering for political reasons in the investigation of crimes and in decisions on whether or not to prosecute and indeed in the proffering of legal advice. I think that is really all there is to it. It may be—and it has been in the past—that the Attorney is independent enough not to be influenced by her political predilections or political associations, but there is the question of public confidence, and in the eyes of the public at one time or another there will be issues where there will be an appearance that the Attorney is not entirely independent, so I think the advice role in particular should be separated from the political role.

  Q7  Alun Michael: Can I just probe this a little further because you used the term "political bias" a few moments ago and you have used the term "political associations" at this point; there is also, is there not, a question of political judgments that have to be made and there is the point where the legal and the political judgments ("political" not being a term of abuse I suggest) have to be taken? You seem to be implying almost that there is something dirty in the political as distinct from the legal but there is the point, is there not, where political and legal judgments have to be made?

  Professor Jowell: Of course there are and I totally accept that and, in my view, there are many lawyers at the moment (there used not to be even perhaps a few years ago) who have had sufficient experience of politics, who are public lawyers, who have acted for government, who have been on the list of the Treasury solicitors and so on, who could perform that role, and who have the political sophistication when making those legal decisions but who are nevertheless separate from the Government, who are not seen by the public as being associated with the Government to the extent of being a Government minister and a member of the party.

  Q8  Alun Michael: You are aware of the arguments that have been put forward by Professor Hazell in support of the provisions in the draft Bill based on the need to have a person carrying out the duties of Attorney General as set out in the draft Bill as being a member of one or other of the two Houses of Parliament. How would you respond to his remarks?

  Professor Jowell: I think that would perpetuate the problems that we have been facing over the last few years that in the mind of the public when that person, who is a politician, who is a minister, gives advice to her Government, it may be perceived (it is not always perceived but may be) that, however independent in practice, that person is as being affected by political convenience.

  Q9  Alun Michael: I am sorry but I think you are answering the question that you had already answered. My question was about accountability to the Houses of Parliament, so the argument that Professor Hazell made was that the person carrying out functions of the Attorney General as set out in the Bill, again following what the Chairman says about separating the title and the functions, ought to be accountable to Parliament and that means being accountable to one of the Houses as a Member.

  Professor Jowell: Yes, this could be arranged. The Ombudsman accounts to Parliament and presents an annual report and can come before select committees from time to time to explain their position, but the Ombudsman is not a Member of Parliament or a minister and is thereby perceived, perhaps more so then the Attorney General, to be completely independent. There are ways of achieving that accountability and on matters of national security you would expect perhaps the minister concerned who tried to stop a prosecution on grounds of national security to come before Parliament and justify rather than have this intermediary quasi political figure made accountable in that way.

  Q10  Alun Michael: The implication of that would be that a minister who was not legally trained, qualified and all the rest of it would be taking a judgment. It may be the right thing to do but the implication, is it not, that he would be taking the decision and accounting to Parliament for a decision not to proceed with prosecution?

  Professor Jowell: I think the decision not to proceed with prosecution on grounds of national security is not a purely legal question; it is a question involving national security which is a much broader issue. On other matters such as whether an invasion of a country is legal, frankly, I do not think that is a matter that ministers ought to be answerable for. That is a matter where the courts ought to provide the answer to that particular question. There have been very few occasions over the years when ministers have been questioned about the actual legality rather than the political wisdom of a particular decision.

  Q11  Chairman: On that point, there is a further aspect to that which might not arise in the case of a decision to go to war if the advice was published but which in many other instances would arise because it would not be the normal practice for the Government to publish the legal advice which the Attorney General has given, and therefore how do you have accountability to Parliament for advice which Parliament by definition is not seeing?

  Professor Jowell: Precisely.

  Roger Smith: If I could just answer the question—

  Q12  Alun Michael: —I am sorry, I am not sure how agreeing with the question gives an answer to it.

  Professor Jowell: I will come back to it, if I may.

  Roger Smith: You ought to realise we are not a double act; there are differences between us. I think the issue is partly the separation of powers but it is much more, in a way, the articulation of powers; it is how they join together, and that is always messy. I think there is a variety of ways in which you can handle this in relation to the roles that the Attorney General currently has. The situation we have now arrived at is that it is not satisfactory how it is and the issue I would put to the Government is that this Bill does not deal adequately with the issues which are now live and have to be confronted and we have to improve on. You could deal with it in a number of ways. The purist, in a way, is what Professor Jowell is saying, where the legal adviser is not a minister, is giving legal advice, is like the DPP in a way, and gives legal advice and can be accountable for his legal advice. There are ways shorter than that and why I intervene is one of them is that you could begin to broaden the issues on which the Attorney must make public or the legal adviser must make public advice. War is one but another one for instance is the statements of compatibility with the European Convention or the Human Right Acts or legislation. At the moment that is a ministerial statement but I think it would be an improvement for it to be an Attorney statement. I think the New Zealand model is for the Attorney to make that kind of statement, so you would then as parliamentarians get the Bill and you would get the Attorney's legal advice on the Bill. You could do that without changing the current role. There is clearly a resistance to change in the current role of the Attorney General and if you wanted to go less than Professor Jowell's full way of an independent DPP-type legal adviser, there are improvements you could make to the current situation.

  Q13  Alun Michael: Yes, I think I struggle with this a bit because it assumes that there is a total and easy separation of the political and the legal.

  Roger Smith: I think it is messy.

  Q14  Alun Michael: I think you rightly said that it is messy and it is difficult to deal with. I have had the experience of receiving advice from colleagues when I was a minister, from the Attorney, and having advice, depending on the issue, from the legal advisers within a department or from Parliamentary Counsel. I think it does differ from issue to issue. I just wonder how a non-political Attorney General could provide the joined-up advice and how a non-political Attorney General could be properly accountable for a decision not to prosecute. One of the examples that has been given is a "cash for honours" type of case for example.

  Professor Jowell: Can I come back to that. There are three possibilities here. First of all, the Attorney gives advice to ministers and the advice is not published, in which case the ministers could not appropriately answer questions fully and fairly about that advice. They would have to say, as they do in most cases "We have been advised that ..." Secondly, in cases where the advice may be published, or published in summary form, the matter is normally so technical and inappropriate to be questioned in Parliament except by legal experts that it is a matter to leave to the courts. The third situation perhaps is when the Attorney has given (assuming an independent Attorney) advice on an important policy matter, and of course the two questions are somewhat connected, in which case in Ireland the Attorney or others giving the advice would be able to appear before a select committee such as this and answer questions as to the legal validity of their decision. Even in a forum such as this however, I do not think it is really within the institutional capacity of Members of Parliament (with all due respect; there are some very great lawyers there) to seek to be a court of law and to probe the actual details of a legal decision.

  Q15  Alun Michael: A final point and I think a question to both of you really which is how do you deal with the processes which are not as straightforward as the ones you give? Simplistic cases always look beautifully tidy. Where it is a question of saying, "I want the advice," and the advice comes and there it is, it is a set of circumstances on which you have a yes/no decision to take, it is beautifully simple and it is possible to publish the advice. Where it is a process of iteration where perhaps there is an interface between difficult legal issues to resolve and political decisions to be taken, the separation of the legal and the political becomes a lot more messy, to use Mr Smith's terminology. Is not the separation that you are arguing for rather over-simplistic in that it is fine for the easy cases but not for the difficult ones?

  Professor Jowell: With respect, no, because with a sophisticated Attorney who is not one of your political colleagues you are a) likely to get more straightforward advice and advice that is perhaps not as convenient as you might want but it keeps one on one's toes; and b) with a sophisticated Attorney that ought to be a person, and there are many of them around now, that understands these complex interactions between politics and law. Certainly the Irish Prime Minister gets wonderful advice from his Attorney, who has been seeped in the past in the political arena and does not attract this perception of being a crony giving advice to a fellow politician.

  Q16  Alun Michael: You are speaking like a newspaper now! Does Mr Smith agree with this simplistic view?

  Roger Smith: JUSTICE's position is that it is a difficult issue and that there is a range of responses the Government may make. Professor Jowell has a very clear and I think it is a purist view, but if you do not go for as pure a view as that, there may be other things that you can do. I think my view would be that I would include within the range of things that I think should be seriously considered the notion that the Attorney should be as independent as Professor Jowell says. If you want to go less than that and you wanted to retain some ministerial link then I think there are things you could still do. As I say, you could make some advice publishable. I think in the main it is probably not a distinction between myself and Professor Jowell. I do not think anybody is arguing that most government advice should be made public. You as a minister get advice, it seems to me, as you as a businessman in just the same way. You are entitled to have that advice and we as the public are not entitled to know it and you as parliamentarians, frankly, are not entitled to know it. I think we have got to a position where there are issues of parliamentary accountability which you are clearly alive to and there are issues of public confidence to which we are alive and you too will be alive. I think the problem at the moment is that it may well be that this confidence is particularly shaken among those who know the most about it but it is shaken and it needs more of a response than is in the Bill.

  Q17  Dr Whitehead: Could I concentrate particularly on the question of discontinuing prosecutions and the Attorney General's role as far as that is concerned. At present, whether public confidence is low or not, the Attorney is the arbiter of the public interest as far as continuing prosecutions are concerned. I suppose a side issue is the extent to which public confidence being low is a subjective or an objective issue as far as whether such practices continue, but the draft Bill retains the Attorney-General's consent function but gives responsibility for discontinuing individual cases to Directors. Is that, in your view, a substantial change and is it, in your view, a welcome change?

  Professor Jowell: Is this the number of consent functions which go to the prosecutors and away from the Attorney General?

  Q18  Dr Whitehead: The Attorney General retains, I understand, a generalised consent function but the actual question for individual cases—

  Professor Jowell: Yes, in individual cases it is taken away from them.

  Q19  Dr Whitehead: —individual continuing cases now go to Directors.

  Professor Jowell: I think this is very much along the lines that I would argue for. I think that is a welcome development and I do concede that that part of this Bill is very welcome in that it seeks to make the prosecutor independent of the Attorney and the decision will be taken outside of the ministerial ring. If I did sound for a moment as if I was a newspaper person, Mr Michael, I do apologise but, on the other hand, I do believe that one has to look at this through the eyes of some of the public because it is very largely a question of public perception in the independence of our decision-making, and the rule of law requires that confidence in our decision-making.

  Roger Smith: Just to follow that, I think the balance of advantage has now shifted. I think there is an advantage in having an Attorney who can stand and say, "It was me; I done it", and for you to say, "Well, I don't like that," or, "Explain yourself," or get somebody in another House to say that. Of course you generally get the Solicitor General now and he did not make the decision and that is a bit unsatisfactory at the moment, but there were advantages in individual decision-making and they are in relation to parliamentary accountability, but I think the engagement of a minister in individual decisions on cases means that we have gone too far, we have gone beyond that and that has lost public confidence, and I think it has to go. It then gets, as you are hinting, a bit messy in terms of the Director of the Serious Fraud Office takes the decision or the DPP takes the decision not to pursue a case and you as a parliamentarian want to raise a question about that. How do you do that? Then I think, as Professor Jowell has said, there are probably other fora other than you cross-questioning the Solicitor General. Actually at the current time you would cross-question the Solicitor General and not the Attorney, and it would be unfair to say you got the monkey and not the organ grinder, but you could substitute the Directors reporting to a committee such as this for their work in the year. I think that you might end up with more parliamentary accountability, oddly enough, through the delegation of the power to the Directors than you currently have through the assignment of their power to the Attorney who is likely to be in another House.

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