Examination of Witnesses (Questions 619
- 639)
THURSDAY 25 JUNE 2009
BARONESS SCOTLAND
OF ASTHAL
QC
Q619 Chairman: Good morning, Lady
Scotland. It is very nice to see you and your adviser. I wonder
if I could ask you one question which is not on the list. We have
had a lot of support for this Bill, but, on the other hand, we
have also had a pretty substantial number of suggestions for amendment.
I wonder how you see the timetable because we probably need to
get this Bill on to the statute book and every day there is a
new government Bill which is introduced, so I wonder how you see
room for amendments, if any?
Baroness Scotland of Asthal:
I think the most important thing is to see whether the Bill is,
in itself, in good shape. If it is in good shape and the consideration
is that the amendments are narrow, then of course we know that
that tends to give a Bill a better chance of getting into the
parliamentary timetable. You are quite right, Chairman, the timetable
is already quite full and the challenge is there, but you will
also be conscious of the fact that, where there has been a Bill
which is seen to be basically sound and not unduly controversial,
but technical in nature, the House has, in the past, found time
for it. For instance, the Bills which you are familiar with which
start in our House, the House of Lords, sometimes can go off the
floor of the House into the Moses Room in committee and can be
dealt with more swiftly. I do not know what the specific timetable
is, but I know that the way in which the usual authorities deal
with this means that a Bill which is in good order and is not
seen to be overly contentious can have a fair wind. I do not know
whether that helps you. I did not ask specifically, before I came
today, what the timetable looks like, but I do know that we have
relatively little time between now and the end of the Fifth Session.
Q620 Chairman: Yes, or indeed between
now and the General Election.
Baroness Scotland of Asthal: Well,
you can say that, Chairman. I could not possibly comment.
Q621 Lord Anderson of Swansea: That
said and the fact of a pre-election session, a rather truncated
session, is there any reason for the Government thinking that
this Bill has any special priority?
Baroness Scotland of Asthal: Well,
I do not know whether it has special priority, but this Committee
will know that bribery is a matter which has been high on our
agenda for some time. There was the previous Bill, and strenuous
efforts were made to try and get that into the parliamentary timetable,
so this has remained high on our priority list. It is certainly,
because of recent events, something which has even more urgency
maybe than would otherwise have been the case, but I cannot say
that it has reduced in importance because it has always been something
that we thought was of extreme importance. I can certainly undertake
to make enquiries as to what the usual channels' view is, but
I am afraid, not being one of the usual channel members, I cannot
actually speak for them.
Q622 Chairman: In the course of the
list of questions, you will find that there are reflections which
some people have put forward by way of amendment, and it would
be very helpful if you would apply your mind to that aspect of
these various matters to help us.
Baroness Scotland of Asthal: I
do know, Chairman, that when draftsmen come to look at the final
version of the Bill, they will find whatever comments that are
made by this Committee extremely helpful, and I can certainly
say, without any fear of contradiction, that the sagacity of this
Committee is well understood and that the importance of looking
at the nuances that you may indicate will be fully understood
also.
Chairman: Well, let us go on to
the questions, and can I just remind members that they do not
get on to the transcript unless you ask them.
Q623 Lord Sheikh: Baroness Scotland,
we begin with Article 5 of the OECD Convention. Do you think there
is any justification for incorporating this in domestic law and
perhaps to have added to it a Code for the prosecutors? As we
all know, the OECD Working Group was very critical with regard
to litigation and it felt that perhaps the Government did not
engage in enough efforts to restrict arguments to prosecutors
based on Article 5 factors. So what are your feelings about Article
5?
Baroness Scotland of Asthal: Well,
firstly, to say that I think it is important for us to remember
that the OECD has not explicitly requested that Article 5 be incorporated
into UK law. However, I think they have made it clear that they
wanted to see how it would be respected and addressed, and it
is quite clear, that we, as you will know, incorporate it in terms
of the Prosecutorial Code, it is something which is referred to
by prosecutors and it is something which the DPP has already included
in the guidelines. Also, there is of course every possibility
that, in the guidance that I give through the Attorney General's
guidelines, this is something that could be highlighted too, but
it is important to remember that Article 5 has purchase not just
on these issues, but generally in the work that a prosecutor will
do, and we do think that putting it in the prosecutorial guidelines
is the correct place for Article 5 to sit.
Q624 Chairman: For all prosecutors?
Baroness Scotland of Asthal: I
think for all prosecutors because this is an important issue and
it is not something which simply applies to corruption or bribery,
but it is a matter of general application and that is why it is
in the Prosecutorial Code, it is why it is in the guidelines,
and it is why it is an issue which has been directed and looked
at by Attorneys General past, and I am sure it will continue to
exercise any Attorney General's mind in the future also.
Q625 Chairman: I suppose one of the
things that we need to consider is the power to withdraw prosecutions
because that would also fall within the area of Article 5, would
it not?
Baroness Scotland of Asthal: Yes.
It comes really, and I know that we are going to deal with it
later, in terms of consent because, if consent is given to a prosecution,
then it is usual for consent to withdraw a prosecution also to
be applied for. Of course we will go on later to talk about whether
and who should have that consent and I see that that is in the
questions that we will address later on this morning.
Chairman: Well, then we will go
on to question 2 about accountability for prosecution decisions
if the power of consent is transferred away from you, as Attorney.
Q626 Lord Mayhew of Twysden: Attorney,
we come on straightaway actually to this question, do we not?
It has been confirmed to us that, if the requirement for the consent
of the Attorney for bribery offences is removed and is vested
solely in the Directors, there will not be any parliamentary accountability,
and I wonder if you could help us about that. To what extent do
you, in your experience, find that parliamentary accountability
is a reality, how does it work, how important is it and what would
be the reaction be, do you suppose, of the House of Commons if
it was found that it was no longer available from the person who
actually has the decision?
Baroness Scotland of Asthal: I
think, firstly, it is implicit in your question that parliamentary
accountability is actually very important. It is important because
both in the House of Commons and in the House of Lords there are
questions which Members wish to have addressed and addressed directly;
they want to know what is being done in a particular case and
why, and we saw that quite graphically on a number of occasions
in the House over the last ten years. Accountability will remain
because, for so long as the Law Officers, that is the Attorney
General and the Solicitor, remain the supervisors and the superintendents
of the prosecutorial authority, there is a vehicle through which
that accountability can take place. I think it is also important,
however, to have a purchase on consistency in the way in which
these consents are to be exercised and, therefore, although it
is proposed that it should be delegated to the DPP, I think it
is going to be important for us to underscore the importance of
that consent. At the moment, I would take those decisions myself
personally. The issue would be scrutinised of course by the very
able people who currently assist in the Attorney General's Office,
and we have got some very senior officials who are skilled in
the law in relation to this area and they will assist me, but
the final consent, whether to approve or not approve, is taken
by me personally or by the Solicitor General, but it is a very
personal consent. These issues are very important, so one would
expect that, if the matter were to be taken or consent were to
be given by a Director of the DPP or otherwise, there would be
an appropriate degree of seniority in taking that decision. When
we come to the Constitutional Renewal Bill, there have been a
number of suggestions as to which decisions the Director may choose
to take himself or delegate to a person whom he has identified
as having the competence of seniority to take that decision, but
also we have to understand that there needs to be some flexibility
in the organisation in order to enable them to deal with that
matter appropriately.
Q627 Lord Mayhew of Twysden: I think
we may come next to a little more about that aspect of the matter,
but I think I understood you to say that, even if the requirement
for the consent were removed in this Bill, there would be a measure
of accountability by virtue of the superintendence that the Attorney
has of the Directors.
Baroness Scotland of Asthal: Yes.
Q628 Lord Mayhew of Twysden: But
will that survive in the Constitutional Renewal Bill because I
thought that the whole thrust of the OECD's Working Group's criticisms
has been the involvement of the Attorney, as a member of the Government,
in matters connected with prosecutions?
Baroness Scotland of Asthal: Well,
I think it should survive. Our proposal is that the Attorney General
and the Law Officers remain the people responsible for the supervision
and superintendence of the prosecutorial authorities, the oversight,
and it is still proposed that there should be a protocol entered
into between the Directors and the Attorney so that there is clarity
about that relationship and what is due by one to the other. For
example, there is going to be the preservation of the duty or
ability to consult the Attorney and you, Lord Mayhew, will remember
that many prosecutors both in the Government Legal Service and
elsewhere very much value the opportunity to come to the Attorney
to seek the Attorney's independent advice and guidance in relation
to complex and difficult issues, but in this instance of course,
where the consent is transferred, it will be the Director's own
decision and not the Attorney's decision which will count. Indeed,
in looking at the papers, as I have, I have not found instances
when Attorneys past, and I see that Lord Lyell sits beside you,
where any Attorney in the resent past has found it necessary to
direct in these issues. It has always been the case that the Directors
will take their own view, but they have, in the past, been supported
and assisted by the ability to consult the Attorney of the day
in relation to complex and difficult matters.
Q629 Lord Lyell of Markyate: Well,
I am very grateful, and I think you are putting your finger on
it, if I may say so. Accountability is extraordinarily important,
that is the responsibility to Parliament and you cannot have responsibility
without power. This is where you were quite right to point out
that consent by the Director is one question, but, and this is
my view and I believe that we agree on it, it must be subject
to the statutory duty of superintendence which carries with it
the power, if necessary, and I will come to that in a moment,
to direct. Now, you rightly said that in recent years, and I think
it goes back a good 100 years and it was something which was not
terribly well understood in every aspect of Government, this has
a very, very valuable creative tension because no Attorney has
ever, in the past 100 years, directed, unless you take some rather
loose language in Lord Shawcross's autobiography, that it is absolutely
essential that the superintendence power should contain the power,
if absolutely necessary, to direct. It is that meeting in difficult
cases of two minds which must remain in the Constitution.
Baroness Scotland of Asthal: Well,
I know that that is very, very strongly felt and very strongly
expressed. I also know that there is great anxiety with the proposal
that we have made that the Attorney should no longer have the
power to direct, but we do think that it is possible now to entrust
that power quite legitimately in the Director of Public Prosecutions
and/or the Director of the Services for this reason: that we understand
the view, a bit like having your nuclear missile, that you will
never use it, but it is a comfort to know that it is there, and
we do not think that that is necessary any longer if we can replace
it with an open, transparent protocol which sets out very clearly
the respective roles and responsibilities of the Attorney and
the Director. When I first came to review the whole role of the
Law Officers and the Directors, it seemed to me that there was
no clarity to the wider world. The Directors understood the way
the relationship worked, the Attorney understood the way the relationship
worked and those intimately connected were very clear about how
the relationship worked and the rigour that there was and the
independence that there was between those two roles, but I do
not think that that was understood by anybody outside that small
purview. Therefore, what we propose to do is to bring that clarity
and transparency in the protocol, so it will clearly set out the
role of the Director, clearly set out the role of the Attorney,
and it will be better understood how that tension works between
the two in a creative way to give real independence and rigour
to the decision-making process. I do think that that is an important
change, albeit I absolutely understand that it causes anxiety,
but you will know, Lord Lyell, that anxiety has been expressed
the other way by those who say that there should be no parliamentary
or other supervision in relation to the prosecutorial authorities,
that it should be wholly removed. That too would cause a difficulty
in terms of what Lord Mayhew talks about in terms of accountability
because how then is Parliament going to be able to hold what the
prosecutorial authorities do precisely to account and interrogate
it and test it in a way that does not improperly impact upon the
independent exercise of discretion by the prosecutor on a day-to-day
basis, on a case-by-case basis, but holds them to account in terms
of the strategic direction in terms of what the public would expect
prosecutors to do? That tension, we think, can help in a proper
balance by the clarity that will come from the protocol that we
have been able to create and would be proposing to publish or,
at least, outline if the Constitutional Renewal Bill came forward.
Q630 Lord Lyell of Markyate: I am
perfectly happy with the protocol, although I do not think you
have produced a draft yet.
Baroness Scotland of Asthal: No,
not yet.
Q631 Lord Lyell of Markyate: I think
the draft is going to be extremely important. I am much in favour
of clarity and I am glad you used that word and not "transparency",
which is getting a bit demoted. However, the ultimate responsibility
and power must remain in the independent Law Officers of the Crown,
and that does not mean that the consent cannot come from the Directors,
which I think is perfectly sensible, although question 3 will
identify whether they can further delegate it, but we will come
to that in a moment, but, if you remove the power of the Law Officers
to direct, they then do not have power and yet they are supposed
to have responsibility and the two do not add up. Unless that
is left, and remember it is attacked by some people who, as you
rightly say, do not really understand how it works, but it does
work, it has worked for generations and it is an essential part,
and I suspect you have already discovered yourself in the naturally
and properly confidential dealings that you have had that it is
an essential part of the relationship, but prosecution, like judging,
is ultimately part of the governance of this country for which
the Government of the day, although it gives it to independent
people, is responsible, and that is why the Law Officers are in
such a special position, as indeed is the Lord Chancellor when
it comes to the appointment of the judiciary. Are we in agreement?
Baroness Scotland of Asthal: We
are certainly in agreement that the Law Officers' supervision
of the prosecutorial authorities is essential for accountability.
I think that where we may not be in agreement is in the necessity
to retain the power to direct. I absolutely understand the force
of the argument which is made and has been made actually by every
Attorney General before me, but I do think that it is possible
for us to move forward and I do think it is possible for us to
say that that power to direct can now be removed, provided that
we put in place a clear outline of how that will be done. Accountability,
I absolutely agree with you, is so important to both Houses of
Parliament, but actually incredibly important to the people of
our country because, at any time anything goes wrong, people want
someone to be held to account, they want someone to be able to
answer for what is done, so I do think that the comprehensive
review that I have undertaken enables me to say that we have a
way forward, which will enable us to devolve more responsibility
to the Directors, but without improperly impacting upon our power
and ability to account to Parliament. I understand that that is
not a position everybody is comfortable with and I understand
that we will have a very robust and vigorous argument about that
if and when the Bill comes forward.
Q632 Lord Anderson of Swansea: I
was a little puzzled as to how there could be greater tension
between the Attorney and the Directors if the Attorney were wholly
deprived of any opportunity of being a longstop, so you have tried
to square that circle by saying, as I understand it, that the
Attorney would give strategic direction. Would, however, that
change in fact deprive Parliament of debating or intervening on
particular cases, such as the BAE one?
Baroness Scotland of Asthal: The
thing is that Parliament has no role in terms of intervening on
individual cases. Individual cases will always be the jurisdiction
of the prosecutor and that is why we have independent prosecutors.
Parliament sets the framework, Parliament can set the agenda,
Parliament can change the law and Parliament can do a great deal,
but it is not quite omnipotent when it comes to our justice system
because of course it is very important to have this separation
of powers, very important that, when a prosecutor makes that decision,
they make that decision wholly independently of Government and
wholly independently of Parliament.
Q633 Lord Anderson of Swansea: That
said, Parliament can comment—
Baroness Scotland of Asthal: Yes.
Q634 Lord Anderson of Swansea:—and
review, in a sense, that decision. Would Parliament now be deprived
of such comment and such review if the Attorney were limited to
overall strategic direction?
Baroness Scotland of Asthal: I
think what we have to be clear about is that Parliament will continue
to have the opportunity to ask questions. Provided of course that
the Attorney and the Law Officers remain, the Law Officers would
be able to be held to account for what the prosecutorial authorities
did or did not do. You are absolutely right that, when it comes
to the final decision, what the change that we propose would mean,
if there were a difference between the view of the Law Officer
and the view of the Director and those two could not be reconciled,
which has never, to my knowledge, happened because we are talking
about the law and, when the Law Officers look at these questions,
they are looking at them as lawyers and not as politicians, if
there were that difference, then the Director's view would prevail
and the Attorney would have no power to override that view, even
if the Attorney thought that the decision which was about to be
made by the Director was wholly wrong.
Q635 Chairman: Well, that is very
clear and it plainly also answers the question that you are not
in any way suggesting that we should abandon the idea of consent?
Baroness Scotland of Asthal: No.
Chairman: But at what level would the
consent be given, on which Lord Sheikh has a question.
Q636 Lord Sheikh: You also referred
to delegation of power and under paragraph 2 of clause 10, we
see, "The function of Director of the Serious Fraud Office
may be exercised by a member of the Director's staff who is authorised
by that Director," which is causing me a little bit of concern.
What do you feel about this delegation of power? What is the justification
and can you see any problem related with this devolution?
Baroness Scotland of Asthal: Well,
the first thing is of course that the Director must have a reasonable
degree of flexibility to organise the administration and operation
in relation to these issues, so that is why it is expressed in
that way. In the protocol that we are working on, we have been
looking at which consents should properly be retained by the Attorney,
which consents could properly be delegated and then, if delegated,
which people within the Director's agency should properly be authorised
to give those consents. Now, in my own view, I would anticipate
that matters of this seriousness are likely either to be taken
by the Director himself, which is what I currently do and the
Solicitor General currently does, we take these decisions ourselves,
or to be delegated to nominated and identified individuals. I
would anticipate that that is the likely way in which the matter
would be dealt with.
Q637 Lord Sheikh: So you and the
junior official may perhaps do the investigation, but the final
work will rest with the Director? That is so, is it?
Baroness Scotland of Asthal: Well,
it would be a matter for the Director to decide, but I would anticipate
that the Director would look at the seriousness of the issue,
the importance of the decision made, the need for continuity,
and that is general management in terms of the workload, and I
would reasonably anticipate that the consents of this sort would
be likely to be taken by the Director himself or an identified
senior nominee.
Q638 Lord Sheikh: So it is a question
of workload really? Am I right in thinking that?
Baroness Scotland of Asthal: It
is a question of workload, but it is also a question of importance.
If these consents are as important as we believe them to be, that
they currently need the consent of one of the Law Officers personally,
one would reasonably anticipate that these consents would be right
at the top of the workload and, therefore, would be the ones which
were most likely to be taken by the Director personally or by
a named nominee. For instance, the Committee will know that the
reason why we changed the position for the Solicitor General was
that, in the past, all these decisions could only be taken by
the Attorney personally and now of course the Solicitor General
has, in the Attorney's absence or as directed, the opportunity
to sign these consents also, so I think it would be totally reasonable
for the Director to identify senior people within the agency who
would carry out that function.
Q639 Lord Lyell of Markyate: We were
told by the Director and by the Director of the Serious Fraud
Office that, respectively, the Crown Prosecution Service handled
five or six corruption cases in the last five years and the Serious
Fraud Office one. It seems to me that there is no reason at all
why it should not be the Director himself or herself who takes
these decisions because what you are saying is that the normal
rule which applies in both services is that, once you say something
is decided by the Director, it effectively means any Crown Prosecutor.
Is there not a strong case here for saying that "the Director"
means the Director?
Baroness Scotland of Asthal: There
is a case for saying that, but I just want the Committee to hesitate
for a moment for me to assure you that in the protocol, which
we are looking at, we are seeking to identify those consents which
should be taken by the Director personally or by a named nominee
and those decisions which could be taken more broadly. I would
anticipate, looking at the way in which we worked on the protocol,
that this form of consent would be taken by the Director or by
a named nominee. I think it would be very difficult to say that
it has to be taken by the Director and him alone because we are
all mortal, not that I wish ill of our young and vigorous Director,
but even he may become incapacitated and be unable to make these
decisions and, therefore, it must be right that he can identify
a senior nominee in his absence who would be able to take these
decisions in his stead. If, by your question, Lord Lyell, you
are saying that you do not believe that this decision should be
taken by any Crown Prosecutor at any level, including the most
junior, then certainly I would agree with that.
Lord Lyell of Markyate: I do not
think it is a practical problem.
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