Select Committee on Justice Minutes of Evidence

Examination of Witnesses (Questions 40-59)


10 JUNE 2008

  Q40  Chairman: And it feeds into the criminal justice policy.

  Baroness Scotland of Asthal: Yes.

  Q41  Chairman: You cannot say the same, can you, about the person who gives the Government its legal advice? That is surely a wholly separate function?

  Baroness Scotland of Asthal: It is a separate function. We have got three different functions. We have got the role of the legal adviser, the role of the superintendent, supervisor of prosecutions and the role, if you like, of the criminal justice element minister who develops policy. There is a real nexus between the last two because, of course, the different prosecutorial authorities are all superintended by the Attorney General and you would sometimes have a difference of view between the CPS, the RCPO, the SFO and the other prosecutors who are not supervised on a statutory basis by the Attorney General. All of them prosecute in the name of the Crown. If you have separate Directors exercising their discretion independently there is an opportunity for a bit of dissonance between what they do, how they do it and when they do it. There is an opportunity, and I have certainly found this clearly since having taken over the role of Attorney, that to manage sometimes the tension between those different roles is quite important on behalf of the individual citizen so you get continuity and consistency right the way through. The different Directors find it useful to have the Attorney as a conduit to have those discussions in a way that makes things more easily resolvable.

  Q42  Mrs James: Just as a follow-on to my original question, you talked about the three-legged stool model, are you an equal partner with the Secretaries of State for Justice and Home Affairs in the formulation of criminal justice policy? What do you see the added-value that you bring to it?

  Baroness Scotland of Asthal: Firstly, you will know that we created the National Criminal Justice Board and the Office of Criminal Justice Reform in order to create a funnel through which all the different policies will go so they make better sense to the people on the ground. What was happening, you may recall, in the past, was sometimes perfectly sound decisions were made by the Lord Chancellor in the Department that was then DCA and before that LCD, perfectly sound judgments were made by the Home Office and perfectly sound judgments were made by the Attorney. Regrettably, when you put them all together on the practitioners' table they did not always absolutely interact in a way that made them easy to apply. The whole point of creating the Office of Criminal Justice Reform was to create that funnel so you would get that synergy and that clarity. I have unfortunately come to understand that not everyone always understands the role of a prosecutor and sometimes decisions will be made without real appreciation of the difference there is in terms of how they operate and what can be done and what cannot be done. It is very important for there to be a separate voice which can clearly explain that and champion it when it is necessary. For example, I do think that allowing prosecutors to be involved in the charging part of the system has brought us real improvements, real opportunities in terms of enhanced diversity and good practice, real acuity, sharpness, when it comes to getting the right charge for the right offence at the right time and at the earliest point. That has been a real improvement in our system and I think it would have been more difficult to achieve if you had not had the then Attorney focusing very sharply on it. Remember that my old role used to be as Minister of State for Criminal Justice and Offender Management in the Home Office so I saw it very much from the other side of the fence and it was very, very useful having the Attorney there to push certain issues, sometimes with the prosecutors, to help them better understand how they could help the system work better. One of the things I think has been a real success story is how you see now the prosecutors and the police and the courts working together through the local criminal justice board to develop and deliver better quality justice in the local areas. Those improvements would not have been deliverable without all three pushing the different participants to work together, to collaborate and to improve their performance.

  Q43  Chairman: We need to move on to some other aspects of this complex issue. Why do you attend Cabinet on a regular basis, other than to give legal advice to the Cabinet when needed to do so, given that that level of involvement in Cabinet underlines the public impression that you are very much part of the political executive?

  Baroness Scotland of Asthal: The first thing to say is, of course, who attends Cabinet is very much within the gift of the prime minister of the day. You will appreciate, Chairman, that I am not a full member of Cabinet and, indeed, my predecessors for the last significant period have not been either; certainly Lord Goldsmith was not. So it is for the Prime Minister to decide whether he wishes the Attorney to attend and it is right to say that I have been invited to attend Cabinet on each occasion. I have not always, as you may know, been able to take up that invitation because there have been times when I have simply, because of the discharge of my other duties, not been able to do so, if I am in Iraq, if I am sent off to do some other issue. But it is clear that if the Prime Minister ever wished me specifically to attend a Cabinet meeting I would do so. There are two schools of thought, as you will have seen from the consultation about this issue. The first is that traditionally an Attorney has not attended regularly but has only attended when called upon to do so to talk about a specific issue. There is another school of thought which says the best opportunity to give advice is early before things have crystallised to such a stage when pertinent advice might have stopped it going in the wrong direction and, therefore, because one does not know precisely when these issues are going to turn up it is prudent to have—

  Q44  Chairman: You should always have your lawyer in the cupboard like the old bank manager advert who would just pop out.

  Baroness Scotland of Asthal: Just in case. There is also another issue, of course. Because the Attorney now discharges the tripartite ministerial role in criminal justice, because criminal justice issues have been of real and acute interest for quite some time, there will be often opportunities to get the benefit of that advice.

  Q45  Chairman: You are making a jump there, you are proceeding from saying because the superintendence role is so relevant to many criminal justice policy decisions therefore the Government's legal adviser, who also happens at the moment to exercise both roles, has to sit through all Cabinet meetings, notwithstanding the damaging public effect this might have.

  Baroness Scotland of Asthal: I hear what is said about the damaging public effect. I think there has been a big debate about whether that is or is not correct. You will know from listening to everyone that one of the delights of this issue is that you have as many views as people who expressly give you information. Certainly when we were undertaking this consultation there were many, many, many different permutations of what should happen and the conclusion that we have come to in the White Paper is that it should be subject to the prime minister of the day being able to request an Attorney. So if the prime minister of the day decided that he did not particularly wish to benefit from an Attorney's presence then he would be open to say, "I do not wish the Attorney to attend the following Cabinet meetings". Our current Prime Minister has come to the view that he would quite like me to attend on a regular basis and obviously for so long as that is his desire I will, as much as I can seek to comply, albeit I have to be clear with this Committee that it is not always possible for me to go and I have not always gone and there have been occasions when I have not gone for a number of weeks in succession. I would clearly go if my Prime Minister specifically asked me to be there, notwithstanding my other duties, of course I would go.

  Q46  Alun Michael: There has been a lot of emphasis on the need for the Attorney General to be a parliamentarian. Why is that important?

  Baroness Scotland of Asthal: I think because of parliamentary accountability. All of us who are in Parliament would have seen the occasions when Members of either House have been acutely concerned about an issue and what people really want is to be able to see, if you like, the whites of the Attorney or the Solicitor General's eyes and, frankly, to grill them, if necessary, within an inch of their lives. My experience is parliamentarians enjoy nothing more and they really wish people to be accountable for what they do and do not do. The question which kept on reverberating through our consultation was if the Attorney or the Solicitor General is not a minister, how does the House, or either House, get the level of accountability that they currently have now. What we all want is reform which would enhance, improve and sharpen accountability, not a reform which would dull or diminish accountability.

  Q47  Chairman: You could be sitting in that chair answering the same questions if you were not a minister or a Member of either House but were the Government's legal adviser.

  Baroness Scotland of Asthal: Absolutely, and I come before this Committee. What I could not do is sneak on to the front bench and be roasted. Lots of people quite relish the opportunity to do that to the Solicitor General and, indeed, to the Attorney General because they believe it is an important part of parliamentary accountability.

  Q48  Alun Michael: Can we explore that a little further though. There are two Houses, the form of accountability is different in the two Houses. For instance, the form of grilling that you get in the House of Lords is regarded in some cases as rather gentler, perhaps in some cases it is slightly more professional in some aspects and by being in the House of Lords you escape the strength of political scrutiny in the House of Commons, for instance. Does it matter which House it is that you are accounting to?

  Baroness Scotland of Asthal: I think the Solicitor General who appears before the Commons has, as you know, a regular slot and that accountability of the law officers is certainly pressed very hard in that House. It is also pressed very hard in the House of Lords. We have varied, have we not, from time to time, the Attorney has been in the Commons and the Solicitor General has been in the House of Lords. Certainly Charlie Faulkner was the Solicitor General in the House of Lords—

  Q49  Alun Michael: John Morris was in the Commons.

  Baroness Scotland of Asthal: Exactly. Then the situation changed under Gareth Williams when Gareth became the Attorney. We have had Gareth then Peter Goldsmith and now me as Attorney General in the House of Lords and we have had Mike O'Brien and now Vera Baird in the Commons. But that, of course, can change at any time dependent on the individual who the prime minister of the day alights upon.

  Q50  Alun Michael: Could we go back though to the question of whether there could be equal parliamentary scrutiny which has been argued to the Committee in other evidence through other mechanisms. For instance, the Irish Attorney General reports via the Public Accounts Committee and in Scotland there is the system of the Lord Advocate who accounts for the Scottish Parliament.

  Baroness Scotland of Asthal: I think we need to be really careful when we compare them. Let us just take the Lord Advocate in Scotland. The Lord Advocate is the head of the prosecutorial authority. She directs and is directly responsible for the prosecution. She is also a minister and she attends the House and can be asked questions in the House and, in addition, if the Executive fall then the Lord Advocate falls with the Executive. I am not clear when one looks at that model which aspect of the model it is suggested that we should adopt. Of course, the nature and the extent of the jurisdiction which the Lord Advocate covers is very, very different from that covered by us.

  Q51  Alun Michael: With respect, it is difficult to compare apples with pears, which is what we end up doing. In Wales you have got the situation where originally it was the appointment of a senior QC and now it has been moved to being a member of the cabinet. Virtually every pattern seems to be different.

  Baroness Scotland of Asthal: Absolutely.

  Q52  Alun Michael: My question is about, is it not possible to design a system which would allow the full accountability, proper scrutiny and the roasting of the incumbent without them being a Member of Parliament or a Minister?

  Baroness Scotland of Asthal: That was a question that we asked and we asked those who were making proposals because we were absolutely open. They may have come forward with a different construct before this Committee, but no-one has suggested a construct which improves upon that which we currently have. Certainly when we were looking at the options, we were looking at options which would improve, enhance and sharpen as opposed to simply substitute or questionably produce a lower level of scrutiny.

  Q53  Alun Michael: There is also the question of accountability for legal advice. Does accountability not lie with the government in terms of what it does with the advice as distinct from what the advice is?

  Baroness Scotland of Asthal: I think there is, of course there is, accountability for those issues by the government but it does not take away the need for the government of the day to have its own law officer giving it advice and various secretaries of state feeling able to come to an Attorney for that advice with confidence that they can discuss any of those issues and get the most robust advice necessary.

  Q54  Alun Michael: Could we look at another aspect of accountability then. Under the proposals there will be powers exercised in the national interest. How will that be scrutinised? Will the courts be able to examine the decisions made in the national interest?

  Baroness Scotland of Asthal: The first thing to say, of course, as you have seen, is we have a procedure by which a certificate would have to be granted and also that the Attorney of the day would have to come before Parliament and declare that this had been done and obviously give some explanation in relation to why it was done. That is, of course, a very important opportunity for scrutiny. There are, of course, issues about the substance of what will be undertaken but it has very much been our experience, and, indeed, the courts have said so in relation to issues of national interest, that is very much a matter the courts have said in the past for government and the democratically-elected executive to determine.

  Q55  Alun Michael: Then the accountability for the Crown Prosecution Service and other prosecution agencies. Will the Attorney General under the proposals accept parliamentary questions on matters relating to the prosecution agencies? If parliamentary accountability is still with the Attorney General then what will have changed?

  Baroness Scotland of Asthal: First of all, we will have, as you will know, created a protocol. The protocol will set out the basis upon which the relationship between the Attorney General and the prosecution authorities will be managed. That will be laid before Parliament, be available for parliamentarians and the public to scrutinise and, therefore, it will be possible for parliamentarians to hold the Attorney more accurately, more effectively to account because you will have set out there that which the prosecutor should be doing, that which the Attorney should be doing. We are aware that there have been a number of MPs and Members of the Other Place, the House of Lords, who have been concerned about the way in which prosecutions have been addressed and it has been the Attorney or the Solicitor General who have had to answer those issues. One of the quite interesting things that I have come to really understand since becoming the Attorney General is that very, very few people actually understand what the Attorney General and Solicitor General do.

  Q56  Chairman: We hope to assist in that process but I have been warned that we might have a vote in our House fairly soon, there are therefore a number of issues I want to move to quite quickly just to make sure that we do not omit them because we may not be able to resume after that vote.

  Baroness Scotland of Asthal: The short answer to Alun's question is, yes, the Attorney and the Solicitor General will continue to be accountable and I believe that the basis, the openness and transparency that were produced by virtue of having a protocol should make it easier for people to do that than it is now.

  Q57  Dr Whitehead: What power do you have at the moment to stop investigations by the Serious Fraud Office?

  Baroness Scotland of Asthal: The Attorney has a power in relation to all prosecutions.

  Q58  Chairman: Investigations was the question.

  Baroness Scotland of Asthal: No, we do not direct investigations at all.

  Jonathan Jones: This is the SFO, sorry to clarify.

  Q59  Dr Whitehead: Yes, my direct question was what power do you have in terms of investigations by the SFO to in any way stop them or halt their advance?

  Jonathan Jones: Successive Attorneys have taken the view that they have power of direction over all the prosecuting authorities which they superintend as part of the superintendence role and that I think we believe would include, as far as the SFO is concerned, power of direction in relation to investigations, but it has never been exercised so it has never been tested.

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