Select Committee on Justice Minutes of Evidence


Examination of Witnesses (Questions 20-31)

ROGER SMITH AND PROFESSOR JEFFREY JOWELL QC

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 there—and I put this forward as an argument without necessarily saying where one should fall on it—that 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 security.

  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 that—and there are many people who think that that should not be the case but I am willing to accept that there should be—there 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 minister—of course they do—but 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 power—and 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 them—and 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 post—and heaven knows what you would call it—which 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 that—and of course the current Government has brought the Attorney into criminal justice more widely—I 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 interests.

  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 those respects.

  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, is it?

  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 Justice.

  Chairman: Thank you very much indeed. We are most grateful to you both and apologies for the earlier interruption.





 
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