Examination of Witnesses (Questions 20-31)|
10 JUNE 2008
Q20 Dr Whitehead: Is there not conversely,
though, a case so far as issues of national security are concerned
something of a question mark against the idea that confidence
has been lost in the role of the Attorney General? Is there not
a case thereand I put this forward as an argument without
necessarily saying where one should fall on itthat inevitably
that is a point where somebody, presumably the Attorney General,
might have the ability to halt cases without giving a full explanation
and logically in a sense because it is a question of national
security you are defining where national security lies and where
it does not, which is not in the realm of public confidence; it
is in somewhere else entirely, is it not?
Roger Smith: One can argue that
and I can see why ministers would be very concerned. I can see
why ministers have inserted clauses 12 and 13 in the Bill, although
they give stronger powers than are currently with the Attorney
at the moment. In a way, you as parliamentarians have to take
a view on where does public confidence stand at the moment and
what is a satisfactory arrangement. I think again these are questions
to which there is no wholly satisfactory answer, but I think that
the model that we came up with was the Attorney with powers to
make submissions; decision-making with the Directors. I can see
there are arguments for and against that but I think, on balance,
that preserves the power of Government to make appropriate submissions
and realistically to get, I would have thought, the right answer,
and gives greater independence than there is at the moment and
should increase public confidence.
Q21 Dr Whitehead: I note you are
saying that the power of the Government to make a formal submission.
Making a formal submission is no power at all; it is a supplication,
is it not? Is not the Government's right to halt prosecutions
in the interests of the state something that exists across the
world really, analogous perhaps to the grant of a pardon by government?
Is it being suggested, or should it be suggested, that actually
in terms of, as it were, supporting public confidence then the
power of the British Government, whoever that may be, is put in
such a distant way as far as that particular area of national
security is concerned?
Roger Smith: The DPP is not that
distant from government. The three Directors are part of the Executive.
They may not be part of the Legislature but they are part of the
Executive, so the Government retains the power to stop the Executive;
it retains the power to stop prosecutions on issues of national
Q22 Dr Whitehead: They are part of
the unelected Executive though, are they not?
Roger Smith: Yes.
Professor Jowell: Assuming, which
I am willing to assume, that in extreme cases the Government must
have the power to stop certain prosecutions, assuming thatand
there are many people who think that that should not be the case
but I am willing to accept that there should bethere should
be certain conditions: firstly, that that kind of decision should
be amenable to judicial review. However, section 13 of this Bill
seeks to preclude judicial review by saying that these decisions,
in effect, are final and conclusive. This is what is known as
an "ouster" clause which is really contrary to every
tenet of the rule of law which requires access to courts to challenge
ministerial decisions, so it is decisions that can be made but
is not entirely exempt from scrutiny and the scrutiny really ought
to be able to take place in the courts. When this has happened
in the past, and the courts are increasingly over the years looking
at decisions like that, they adopt a fairly wide margin of discretion
to the ministerof course they dobut they do insist
that he acts not simply when it is desirable or convenient, or
for an improper motive, such as keeping the party in powerand
I am not saying this has ever been done but things like that are
not beyond our imagination and that is why we have courts to scrutinise
themand insists that they are necessary and not simply
desirable under the test of proportionality. This is done every
day in respect of national security cases. Yes, even if the Attorney
can intervene on matters of national security to stop a prosecution,
there should be the possibility, I would submit, of judicial review.
That seems absolutely a constitutional fundamental which is seriously
violated in section 13 of this Bill.
Q23 Mrs James: First of all, I do
apologise for being late and as I returned late I may have missed
your earlier responses and you may already have covered a little
bit of the area that I am going to ask you about. You have touched
upon the role of the Attorney General but do you think that the
Attorney General should give up all ministerial responsibility
for criminal justice policy? Is that function inconsistent with
the legal functions of the role?
Roger Smith: My position is slightly
more flexible I think than Professor Jowell's. I think probably
it is ideal for the purist
Professor Jowell: I am flexible!
Roger Smith: I think that the
legal adviser role is the difficult one to combine with the criminal
justice role, so I could entirely see a combination of a postand
heaven knows what you would call itwhich combined superintendence
responsibility for the prosecution service with a general role
in relation to criminal justice, and the legal adviser role, which
is not necessarily linked to those at all, could be separate and
could be ministerial or not, so I think it could be combined.
I think there are difficulties when the legal adviser is also,
effectively, a minister in the Government with responsibilities
for the delivery of policy because then you potentially have a
conflict between the person who should be giving the Government
legal advice and someone who is running things. In some ways your
adviser should be means-orientated and a minister, understandably,
is ends-orientated and I think that potentially becomes too much
of a conflict.
Professor Jowell: In some respects
I would agree with that. I think that criminal justice policy
is largely a matter for a person who is responsible for policy-making,
which is the relevant minister, whether it is the Home Secretary
or the Justice Minister. However, the Attorney as the legal adviser
to Government, and with a role in prosecutions, may well have
something to say, and I would think that an independent Attorney
could also contribute to that discussion from his perspective:
"This is what happens in prosecutions as I know them. This
is what happens in the kind of advice that I have given if you
are seeking to increase the penalties for knife crimes so many
times, this may offend some of the international conventions in
respect to the rights of the child," that kind of thing.
Thus the Attorney might well have a role here in the same way
as the Chief Justice might have a role to be consulted in this
matter but, as is suggested under the protocol, that is only alluded
to and in so far as it is a suggestion that the Attorney has a
policy-making role in respect of criminal justice, I think that
is really not the kind of role that an independent Attorney ought
really to have, although his experience ought to be valuable in
the policy-making process. In that sense I think I am flexible.
Q24 Mrs James: So it is important
to have a voice in the formulation of criminal justice policy?
Roger Smith: Whoever superintends
the prosecution services, whichever minister it is, whatever arrangements
you have, has a right to say, "My Government will prioritise
this type of prosecution"whatever it is, it could
be domestic violence or corporate crime"We will concentrate
on this." That seems a legitimate political decision about
the allocation of resources and priorities which is ministerial,
so anybody who is in charge of superintendence necessarily is
involved with that. The extent to which you want to go beyond
thatand of course the current Government has brought the
Attorney into criminal justice more widelyI think that
is a bit more problematic but is just about acceptable. However,
it raises problems. The problem is the more you are driven into
the policy, then the more there is the potential conflict between
the legal adviser role.
Q25 Mrs James: And how you keep the
walls up between those two roles and the interaction?
Roger Smith: Yes, so it is about
the articulation of powers, how you articulate these different
Q26 Mrs James: My next question is
for Professor Jowell and it is on the oath of office. You have
laid great emphasis on the need to change the oath. Why do you
consider that important?
Professor Jowell: I consider it
important first of all because the present oath has an archaic
ring about it. The Attorney declares that she will serve the Queen
"after my cunning" and so on, but that is not the main
reason. The main reason would be so that it makes emphatically
clear that her role is to uphold the rule of law and to act in
the public interest, as opposed to a party political interest
which she gives the impression sometimes of acting in because
she is a minister of the Government. That is some way towards
that separation. I think oaths have limited importance but I think
that is a start. I would prefer to have a statutory duty in both
Q27 Chairman: Just on one of the
other points that you raised in your memorandum, you expressed
concern about the tenure of the Directors and the role of the
Attorney; is that because of a change that is in this Bill?
Professor Jowell: Yes because
of the change. Section 3 provides for the protocol and then provides
that the protocol may include various matters and that the Directors
and the Attorney must "have regard to the protocol"
and then we get sections 4 to 6 which provide that "the Attorney
may remove the Directors from office if he is satisfied that they
are unable, unfit or unwilling to carry out their functions."
Then it goes on to define "unfit" as "failing to
have regard to the duty to obey the protocol". We do not
know what could be in the protocol but I put that against the
Council of Europe's recommendations, which I cite, on the role
of public prosecutors in the criminal justice system in particular,
which require all prosecutors to have fairly secure tenure, not
quite perhaps as secure as a judge's but moving in that direction,
and it allows only for their summary dismissal.
Q28 Chairman: Does not a comparable
power exist at present within the Executive to remove the Director
on grounds similarly expressed?
Professor Jowell: I am not absolutely
sure what the position is in respect of removal at the moment.
I think it would certainly be possible to. It is certainly new
in the sense that it refers to the protocol.
Q29 Chairman: That is the change,
Professor Jowell: Yes, that is
right, and failure to take into account the protocol. Goodness
knows what that may contain. Goodness knows what that phrase means
and it gives an easy opportunity for an Attorney to dismiss a
prosecutor. It is almost equivalent to the Prime Minister asking
for the resignation of a minister, in effect dismissing him; he
has total discretion to do so.
Q30 Chairman: They do not have to
make any conditions.
Professor Jowell: No, and this
is a kind of similar situation that we do not want to get into
because I think all the Council of Europe standards insist that
the prosecutor has a degree of security of tenure from the Attorney,
or any other minister, more or less but not equivalent to that
of a judge.
Roger Smith: I would just like
to come back to the end of Professor Jowell's answer to Mrs James
Q31 Chairman: Could you do so rather
briefly because the Attorney is waiting for us to question her.
Roger Smith: Because I think there
should be a statutory duty for the Attorney to act in accordance
with the rule of law as there is for the Secretary of State for
Chairman: Thank you very much indeed.
We are most grateful to you both and apologies for the earlier