Select Committee on Justice Minutes of Evidence

Examination of Witnesses (Questions 60-79)


10 JUNE 2008

  Q60  Chairman: Why does it have to be included in the draft Bill in a specific form if you say it exists already?

  Baroness Scotland of Asthal: One of the things we are doing is changing the power of direction. We are saying that in individual cases the Attorney will no longer exercise the power of direction, save and except for those cases which relate to national security. That is a change. At the moment the Attorney has the power to direct in relation to all prosecutions. It is a power which has not been exercised but it is a power that exists nonetheless. Therefore, in terms of if there is or were to be a direct conflict between a Director of the prosecution authorities and the Attorney whose view would prevail, then the view that would prevail would be the Attorney's view and that has been clearly set out in a number of cases, and in particular in 1998. This issue came up and it was made clear, it was Sir Iain Glidewell who made it very clear, that the final arbiter would be the Attorney General.

  Q61  Dr Whitehead: When you say that you are changing the general powers of direction, is it not the case that actually there is in the draft legislation a specifically different provision relating to the direction of the Attorney General in relation to the SFO and that is a provision for directing a Director to discontinue an investigation, not just a prosecution, which is quite different from that which is within the responsibility of other Directors? Is that not a very specific difference that the draft legislation makes?

  Baroness Scotland of Asthal: I do not think it is. What it is doing is making the power of direction. You will know that the SFO have a different function because the SFO both investigate and prosecute, the CPS prosecute and the investigation is undertaken by the police.

  Q62  Chairman: That is precisely the point I want you to clarify and Dr Whitehead does too, which is you cannot stop the police from investigating a matter. You can decide at the end of the day prosecution is not in the public interest. What we are exploring here is the fact that you appear to be specifying in the Bill the power to stop the SFO doing something in relation to fraud which you could not stop for any other offence that the police were investigating.

  Baroness Scotland of Asthal: That is because of the nature of the Serious Fraud Office, not because of any other factor. It is because of the way in which we have constructed the function that they perform.

  Q63  Chairman: The outcome is that you can stop a fraud investigation but you could not stop an investigation that was for theft, for example.

  Baroness Scotland of Asthal: We have to look at the basis upon which that power or direction would be operated. It is on a very, very narrow basis of national security and no other. Also, just to reassure the Committee, we believe that will be very, very rarely operated. Even in a case such as BAE it was not a decision taken by the Attorney, it was a decision taken by the Director himself.

  Q64  Chairman: I am sorry to be able to relieve you of an obligation here, but the matter is now sub judice so the individual case is something we cannot explore at the moment.

  Baroness Scotland of Asthal: Absolutely.

  Jonathan Jones: May I just add a comment on that last point to be clear. The position at the moment is that SFO investigations are in a different position, if you like, from other investigations because they are already undertaken by an organisation that is under the superintendence of the Attorney General, whereas police investigations plainly are not. To that extent there is already a distinction and what we have done in the Bill is simply provide for the power of direction to be coextensive with that power of superintendence.

  Q65  Chairman: The outcome is that the situation is different depending on what offence is being investigated as such a way as might imperil, let us say, our security relations with another country.

  Jonathan Jones: That is true, but equally, as I say, the investigation of serious fraud is undertaken on a different statutory basis from the investigation of other types of offence.

  Q66  Mr Turner: I am sorry, I may have misunderstood, but you seemed to be saying that the right to stop an investigation by the SFO was allowed whilst in every other case they were only decided that the police should investigate, is that correct?

  Baroness Scotland of Asthal: We have got two different structures. In relation to prosecutions undertaken by the CPS, they have no purchase on the investigative part of these offences, that will be undertaken by the police. Indeed, we have slightly changed the situation inasmuch as now that the prosecutors are responsible for charging offences they have a greater engagement. Traditionally, and what remains is, there is a total separation of the two, and they will deal with the majority of prosecutions. The CPS deal with about 1.5 million different offences. The Serious Fraud Office deal with a very tightly focused aspect of fraud because not all fraud is done by the Serious Fraud Office, some of it will be done by the RCPO and some of it might actually be encompassed in the work that SOCA does. The SFO have a specific focus on serious fraud. When the Serious Fraud Office was created they subsumed within that office both the investigative portfolio and the prosecutorial portfolio, so those two are currently conjoined. Whereas the Attorney does not have a purchase on the investigative part of the CPS role or the other investigations which are done by the police, the Attorney has had traditionally, from the inception, superintendence and supervision of all the function of the Serious Fraud Office. That is the difference.

  Q67  Mr Turner: The inception having been when?

  Baroness Scotland of Asthal: I am just trying to think.

  Jonathan Jones: The Criminal Justice Act 1987. It was 1988 that it was set up.

  Q68  Mr Turner: What happened before then?

  Baroness Scotland of Asthal: Before then there was not a Serious Fraud Office.

  Q69  Mr Turner: So what happened?

  Jonathan Jones: Serious fraud would have been investigated by the police and prosecuted by the CPS.

  Chairman: Let us get the questioning back to Dr Whitehead.

  Q70  Dr Whitehead: If, as you are saying, in a sense you are regularising the question of the power of direction, and that is the suggestion that is coming over to me in terms of what is happening in the draft legislation, how would any Director be able to decline to follow, or feel that they might be able to decline to follow, any policy relating to criminal prosecutions that they feel are inappropriate, or would they simply have to get on with it?

  Baroness Scotland of Asthal: In relation to all areas other than national security, the Director will, for the first time, become the final arbiter as to whether prosecution will or will not take place. At the moment the Attorney has the power, albeit it has not been used, to direct a Director in any form, so that is the RCPO, the SFO or the CPS, in relation to an individual case. That is the current position. We are proposing to remove that power of direction in all areas in relation to individual cases save and except for those cases which touch upon national security, and it is on national security where we are preserving the power of direction, we are expunging it for everything else.

  Q71  Mr Turner: Does this mean SFO as well or not?

  Baroness Scotland of Asthal: Yes, it does.

  Q72  Mr Turner: So SFO are prosecutions in order to protect national security?

  Baroness Scotland of Asthal: Yes.

  Q73  Mr Turner: But SFO is not always national security.

  Baroness Scotland of Asthal: No, absolutely.

  Q74  Mr Turner: So you are including it as "in addition to"?

  Baroness Scotland of Asthal: No, no. In relation to all prosecutions at the moment of whatever nature the Attorney General has the power to direct, all of them: national interest, not national interest, from taking and driving away a vehicle to murder, to any crime of whatsoever nature. In practice, of the 1.5 million prosecutions that are dealt with by the CPS very, very few indeed ever get on to the desk of the Director, much less on to the desk of the Attorney General. In practice, it is very rare for an Attorney to become involved in any of those cases. However, if an Attorney did become involved in any of those cases of any species, of any nature, and there was a difference of view between a Director and an Attorney then the view that would prevail, if there ever was that conflict, would always be the Attorney's view because the Attorney has the power to direct in relation to all of them. In that position I am in a similar position now to the position that Eilish Angiolini as Lord Advocate is in Scotland. We can do it all ways.

  Q75  Chairman: And that you are changing except in respect of national security?

  Baroness Scotland of Asthal: Yes. The truth is historically, maybe because of the size, the Attorneys have not directed.

  Chairman: I must press on because there are aspects of this we do need to explore further.

  Q76  Dr Whitehead: If we come to the question of national security, the position is that you will effectively, by the draft Bill, remove your powers of direction subject to what you have mentioned as far as every service is concerned. Why is it that as far as national security is concerned you could not, as has been suggested, perhaps make a submission to the relevant Director in an appropriate case that prosecution might be halted? Why is it the case that there is a different consideration than seems to be the case elsewhere?

  Baroness Scotland of Asthal: The first thing to say is that in practice it is likely that the Director will be intimately involved in all these decisions and, indeed, we are really looking at the situation where there may be a dissonance, a disagreement, between the Attorney and the Director as to national security implications. In those circumstances, bearing in mind we are getting rid of the power to direct in all other areas, we thought it was right, fair, proper and, quite frankly, honest to say in relation to this one area we are retaining the power to direct. What is still likely to happen is the Director is likely to be intimately involved in it, there is likely still to be consultation and considerations, and I think it will be very rare for an Attorney to have to utilise this power. We think it is only right and proper if we are expunging the right in relation to all other areas to say that when it comes to national security, because of the importance of that issue to our country and because the fundamental nature of government is to make the safety and security of our citizens of primary importance, that is what governments do, in that one area we should preserve the Attorney's power to direct.

  Q77  Chairman: Why the Attorney? The Attorney is not a security expert. The people who will be advancing the security arguments will be the Prime Minister, possibly the Foreign Security, possibly the Home Secretary. It will be they who make precisely the judgment you have just identified.

  Baroness Scotland of Asthal: The reason why it should be the Attorney is the Attorney is the independent guardian of the public interest and, if we have the oath, the rule of law, so it is the one minister, if one likes, in government who has a duty to step outside of what government of the day necessarily would wish to do and ask the question on behalf of the public, "Is this in the public interest that this position be taken?" You will know, Chairman, that we currently have the Shawcross exercise. Of course, the Attorney would have to take into consideration the views of other members of Cabinet in relation to what should be done, of course that would happen, but at the end of the day it would have to be an independent exercise of discretion in the public interest by the person in government who has been entrusted with being guardian of the public interest and the rule of law. You will know that the role of the Lord Chancellor has changed significantly but it is not proposed in the White Paper for us to change that aspect of the Attorney's role.

  Q78  Dr Whitehead: Could not that entire description fit the phrase, "and therefore the Attorney General could take court action in the event that one of the services, as far as national interest is concerned, proves to be acting unreasonably"?

  Baroness Scotland of Asthal: No, because it is of critical importance that the government of the day that has been entrusted with exercising the duty and responsibility for preserving the national security, and thereby the national interest, should be in a position to do so through the most appropriate minister exercising an independent view as the guardian of the public interest in government to make those decisions.

  Q79  Chairman: So you would say to the Prime Minister or the Foreign Secretary, "I, as independent Attorney General, have looked at this matter and I do not think the national security issue is quite as pressing as you suggest or proceeding with this case would have the consequences you are worried about and, therefore, I conclude as Attorney General, having regard to the public interest, that your wish to end this prosecution should not be met"?

  Baroness Scotland of Asthal: I think it is of absolute critical importance that the Attorney of the day makes that decision independently in view of the responsibility that an Attorney would have in relation to the public interest.

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