Examination of Witnesses (Questions 1
- 19)
TUESDAY 23 OCTOBER 2007
Rt Hon Jack Straw
Q1 Chairman:
Lord Chancellor, welcome. It is very good to see you here, thank
you for coming. Just as a matter of protocol, given you are multi-hatted,
would you prefer to be addressed as Lord Chancellor or Secretary
of State?
Mr Straw: It depends on your point of
view. I am here really as Lord Chancellor. I have two jobs—I
have three, one is representing my constituents—but the
Lord Chancellor's role is a distinct role within the law in terms
of responsibility for the court system and in respect of the Judiciary—I
am not responsible for them any longer—so by all means call
me that, or you can call me Jack, if you want, whatever suits
you!
Q2 Chairman:
You are in the House of Lords, so a certain measure of formality
reigns!
Mr Straw: I am in favour of formality
but in these circumstances some others are not.
Q3 Chairman:
Given that we established a good precedent with your predecessor
of regular chances to have this sort of discussion, we will stick
with Lord Chancellor, if that is agreeable.
Mr Straw: That is absolutely fine, my
Lord.
Q4 Chairman:
Thank you. I am told there is about to be a vote so we may have
to adjourn, but let us make a start anyhow. I should just say
that the proceedings are being televised, so would you be kind
enough for the cameras to identify yourself.
Mr Straw: Of course. I am Jack Straw,
I am the Lord Chancellor.
Q5 Chairman:
Indeed, you are the first Lord Chancellor—this historic
role that goes back hundreds of years—to have been a Member
of the House of Commons. I wonder if you feel that having an MP
rather than a peer as Lord Chancellor is likely to have any significant
impact on a role that goes way back in British history, and whether
already you have encountered any practical or procedural difficulties
exercising this role from the Commons?
Mr Straw: It does make a difference,
first of all. It would have been impossible, in my judgment, to
have had a Lord Chancellor as head of the Judiciary prior to the
2005 Constitutional Reform Act, who was in the Commons. I am living
proof of the fact that it is not impossible to combine being a
Member of the House of Commons with the new responsibilities.
But I should say—and I said this before the Lord Chief Justice
in his court when I went to swear the three oaths that Lord Chancellors
are required to make—that I am very conscious of the responsibility
that I have as the first Member of the Commons and senior politician
to have this role, of the importance of me ensuring that I not
only follow to the letter what is required of me in the Constitutional
Reform Act but to the spirit in terms of protecting and sustaining
the independence of the Judiciary. I am very conscious of that.
I have said in other contexts as well that I am conscious also
that, whilst I cannot ordain the future, the practices and precedents
that I set for this job with luck should be able to set a baseline
for how others comport themselves in the post in the future. In
terms of practicalities, the only practical problems—that
would hardly be worthy of a footnote in history—have included
the fact that the ancient ceremony by which I communicate Her
Majesty's consent to the election of Lord Mayor of London had
to be moved from the Princes Chamber, which I am told is part
of the House of Lords, to the Robing Room, which everybody said
was a much better room and why had they not used it before. And
there have been some navigational problems over whether I, as
a Royal Commissioner, could deal with the prorogation, which we
have passed on for this year and it may be sorted out for next
year.
Q6 Chairman:
Thank you for that. Can I ask specifically whether—and even
this Committee gets confused and if we get confused I daresay
other Members of both Houses will be confused—your responsibilities
in respect of constitutional reform come under your Lord Chancellor
hat or your Secretary of State for Justice hat?
Mr Straw: In terms of legislation essentially
I wear, I suppose, the Secretary of State for Justice hat, although
it is pretty fungible. Lord Irvine had direct responsibility for
some aspects of the 1997 to 2001 constitutional programme. He
chaired the Constitutional Affairs Committee in those days and
although formerly the Human Rights Bill was my Bill because it
was introduced into the Commons we shared responsibility for it.
I put it this way, Lord Holme, that until the legislation goes
through it is a Secretary of State role. I think it is neither
here nor there, to be honest, but sometimes once it has gone through
and if it impacts on the role of the Judiciary then it is a Lord
Chancorial role.
Q7 Chairman:
I suppose a relevant supplementary to that is can you personally,
as a senior member of the government and with a responsibility
in this area, envisage that at any point the post of Lord Chancellor
and Secretary of State for Justice might be split up?
Mr Straw: I am not a soothsayer, a foreteller
of the future. It is possible but I think that it is very unlikely.
My own sense is that the Ministry of Justice is going to last.
There was quite a debate post 9/11 about whether the Home Office
was too big. The Conservative Party proposed that there should
be a minister for homeland security. Essentially what you now
have in the Home Secretary is exactly that. He is still called
Home Secretary and I think that is appropriate. The Home Office
has very important responsibilities but they are much less diverse
than they were when I was Home Secretary or predecessors of mine
were, so all those constitutional responsibilities, most of those
were transferred actually in 2001 after I moved on, mainly to
what became the Department of Constitutional Affairs but some,
for example, in respect of gaming, horseracing, licensing, that
sort of area went off to the Department for Constitutional Affairs,
and some race relations went to what is now the Department of
Communities and Local Government. Then with this big change, which
took place and was announced in early May, responsibility for
everything really that happens from the door of the court was
transferred to what has now become the Ministry of Justice, and
I get no sense that that is going to be disturbed. It could be,
but I do not think it will be.
Q8 Chairman:
The particular anxiety of this Committee, which we have expressed
in more than one report, is that constitutional affairs, although
high in the new Prime Minister's list of priorities, could find
itself in the reorganisation a poor relation. Do you think there
is any danger of that happening?
Mr Straw: I think there is no danger
of that with this Prime Minister at all; quite the reverse because
it is a very important priority. My Lord Chairman, obviously I
cannot speak for future Prime Ministers, it depends on the relative
priority that it is given, and in any case we have periods of
constitutional change in this country and we have periods of consolidation.
We had quite a significant period of constitutional change, just
going back during our administration, between 1997 and 2001 and
a period of consolidation for six years after that and there is
now a further period of change, so it is going to go like this.
It will not be relegated because even once it has been passed
there is a continuing responsibility to maintain, for example,
the freedom of information regime, the data protection regime
and the whole human rights and responsibilities agenda, even once
the changes are agreed.
Q9 Chairman:
Could I move on to a question which we asked your predecessor
and we had an interesting answer both from him and from the Lord
Chief Justice, which is how would you personally, now that this
weighty, historical role has descended on your shoulders, define
the Rule of Law? And you will recall in the Constitutional Reform
Act that you have a constitutional role in relation to the principle
of the Rule of Law. How would you define that?
Mr Straw: I am glad you have asked me
that question. The way I would define it is by recommending that
those who wish to have a better understanding of the concept should
read Lord Bingham's excellent lecture that he gave a few months
ago—the Sir David Williams lecture. He has a far better
legal mind than mine and I think his exposition of the Rule of
Law, his eight sub-rules, is brilliant. Lord Bingham in this lecture,
for those of you who are familiar with it, refers to somebody
of whom I have not heard, called Brian Tamanaha, who described
the Rule of Law as "an exceedingly elusive notion" giving
rise to a "rampant divergence of understandings" and
"everyone is for it, but have contrasting convictions about
what it is". One of the points that Lord Bingham makes is
that of course you can have the Rule of Law also within an entirely
authoritarian context, and so you have to ensure that the Rule
of Law operates in a democracy with proper checks and balances
and so on, and he sets out these eight conditions for it, and
I defer to him on that. For those who have not read it, it is
a really interesting lecture.
Q10 Chairman:
I will bring in Lord Morris in a moment, but one way of expressing
the purpose of the question is: over and above the independence
of the Judiciary, which let us assume is common ground, what do
you think is crucial or not?
Mr Straw: I will tell you what I think—and
this is where I am extremely conscious of my own responsibilities—which
is that fundamental to the operation of the Rule of Law within
a democracy is that there should be an understanding about the
separation of powers and particularly the separation between the
Executive and the Legislature on the one hand and the Judiciary
on the other hand, and a mutual respect about the different roles
that each has. That therefore requires there to be a responsibility
on politicians, those in the Executive and Legislature—and
of course in our system we are all mixed up—to respect the
role of the courts, to appreciate that in a democracy the courts
are not only arbitrating between private individuals, private
citizens and also between the State—the Crown in our case—and
those who are alleged to have transgressed, through criminal proceedings,
but crucially the courts are there to arbitrate and moderate on
disputes which arise between citizens and the State, the other
way, and that we are regularly going to be respondents to actions
and quite frequently will lose those, and we have to take it on
the chin without a huge amount of complaint. We may regret a particular
decision and we are entitled to say that, but not to do that in
a disrespectful way. On the other hand, there is also a quid
pro quo for this and Lord Bingham said, "Thus one can
agree with Justice Heydon of the High Court of Australia that
political activism, taken to extremes, can spell the death of
the Rule of Law." So there needs to be an understanding about
where the role of the court ceases and the role of political decision-making
takes over. I think in this jurisdiction that we have the balance
pretty well right.
Q11 Chairman:
If you felt as a member of the Cabinet, and a senior member at
that, that the government was in danger of infringing the Rule
of Law, what would you see your responsibility as being?
Mr Straw: To say so, first of all privately
to colleagues, and then publicly, if necessary.
Q12 Chairman:
Publicly as in Cabinet?
Mr Straw: No! Surprisingly enough, notwithstanding
rumours to the contrary on the whole what happens in Cabinet does
not get broadcast, especially not these days actually, if I can
put it that way. If necessary publicly, in public—go on
the record on it.
Q13 Baroness O'Cathain:
On the floor of the House of Commons?
Mr Straw: On the floor of the House of
Commons or in the public print, yes; I am quite clear about that.
Q14 Lord Morris of Aberavon:
Lord Chancellor, I supported the maintenance of the title of Lord
Chancellor—
Mr Straw: Thank you!
Q15 Lord Morris of Aberavon:
... in the House of Lords at the time and it has been a pleasure
if not relief that a senior politician like yourself was appointed
to it, being the first from the House of Commons. But having reflected
now on part of the statutory responsibilities which could easily
be amended is there any real reason for maintaining this strange
distinction between Secretary of State and Lord Chancellor? Do
you adopt the same approach as your predecessor? We noticed that
the opening of the new session was a bit different from what your
predecessor did. Is there any real purpose now in maintaining
this position?
Mr Straw: Ultimately it is for Parliament
and not for me to decide. I certainly do not think it is a priority
to go through that great argument that took place in 2004/2005
and change it. As I say, I think I have a responsibility to show
that this arrangement with the Lord Chancellor in the Commons
is workable; and, as I have again said publicly, may paradoxically
work to enhance the independence of the Judiciary because if you
are down in that end you have to be very conscious of the need
for separation. I also think, Lord Morris, that since the role
of Lord Chancellor is embedded in all sorts of statutes and procedures
it would be a huge amount of trouble, which is partly why the
last effort was abandoned to seek to abolish it. This is purely
at a personal and historical level—I would be rather sad
to see the post being abolished having survived through the vicissitudes
of time since the seventh century. It is a rather quaint relic.
As I say, there is a purpose, however, with it, which is that
I think that it is worthwhile having a distinction in terms of
role and title in respect of the Judiciary from the other functions.
I really do think that is important.
Chairman: Thank you very much. Lord Lyell.
Q16 Lord Lyell of Markyate:
Lord Chancellor, you emphasised, and I agree with you very strongly,
I think, about the importance of separation of powers and both
historically and, as I understand it, still under the Rule of
Law today and black letter law today, there is a separation which
gives a particular role both to the Lord Chancellor and to the
Attorney General to ensure the purity, the complete absence of
party political influence on both the Judiciary, which must be
totally protected, and the purity of the prosecution process.
I was somewhat surprised to hear the Prime Minister in July, when
he talked about Executive changes, lumping the Attorney General
in with 11 other items of the Executive. Would you not agree with
me—I hope you would—that the Attorney General is not
in his prosecutorial or advice-giving functions a member of the
Executive? He is the first Law Officer of the Crown, appointed
under the Great Seal, with the same seal that a judge has, and
acting as independent he is appointed by the Prime Minister but
he is Her Majesty's Attorney General not the Prime Minister's
Attorney General, and although the Prime Minister can sack him,
if he wishes, he cannot tell him what to do. Do you agree?
Mr Straw: All that is true, Lord Lyell,
but the Prime Minister did not lump it in. What he sought to do
was to deal with some present issues and a perception which has
been there from time to time and going back that there needed
to be a greater clarity about the role of the Attorney General.
Lord Goldsmith is both a friend of mine and someone for whom I
have the highest regard in terms of his integrity, but it is just
a matter of fact that some of the decisions and processes in which
he was involved became quite controversial and the Prime Minister
thought—and so did Baroness Scotland—that it was sensible
to try to ensure that there was stronger protection for that role,
and maybe in some respects to separate the role or to make it
clearer.
Q17 Lord Lyell of Markyate:
Is not the problem when you have what are—and you used the
word "perception"—perceived to have been mistakes—some
of them wrongly—that instead of changing the office you
should look into what went wrong. The importance of the independence
of the prosecuting authorities and the answerability of government
in its widest sense, through the Law Officers or the Lord Chancellor,
for that integrity are things not to be lightly got rid of.
Mr Straw: I agree with that entirely
and I have made the point myself that there has to be—and
you, Lord Lyell, know this much better than me—a point where
the prosecutorial role and the role of senior adviser to the government
has obviously to come into the counsels of the Executive—there
is no way out of that.
Q18 Lord Lyell of Markyate:
The counsels of Government, if I may say so.
Mr Straw: That is what I meant, yes,
counsels of Government. Also, because there is a public interest
test as to prosecutions in our jurisdiction as well as an evidential
test there are going to be some occasions where what is judged
to be the public interest will be quite widely defined, not least
in terms of national security and so on. The other thing I would
say, having, as it were, served with Lord Goldsmith during Iraq,
where there is a highly controversial decision which has to be
made and advice given as there was in respect of military action
in Iraq, whether it was inevitable that the process and maybe
the individual giving the advice becomes subject to some controversy
is beside the point, but in this case the process did and so did
the person, and it was reflecting on that and some other issues.
There was some controversy about the decision in respect of the
Serious Fraud Office and BAES but the main controversy has arisen
over legal advice, as you know, but there is a consultative document
being issued on the role of the Attorney General and we are currently
in the process of receiving comments on it.
Q19 Lord Lyell of Markyate:
Can I ask you for your reply on these observations? First of all,
the Attorney General over Iraq asked the Prime Minister, Tony
Blair, for an express written assurance that Britain's immediate
national interests were under threat, and he got it. That was
described later by the former Secretary of the Cabinet, Lord Butler,
as disingenuous. The second point is that over BAE, whilst very
senior public officials, our Ambassador in Saudi Arabia and the
Director of the Serious Fraud Office, looked at this matter most
carefully the Director of the Serious Fraud Office took the decision
and was very careful not to do what I am about to say, the Prime
Minister suddenly weighs in saying that a good reason was because
we were going to lose a lot of business, which is unlawful. If
you get the Prime Minister of the day saying unlawful things at
the time of a highly important quasi-judicial decision that needs
to be brought into the public eye and seen for what it was.
Mr Straw: If I may say so, I do not have
the Butler Report in front of me and nor do I recollect exactly
what the Prime Minister said—it was words to that effect—but
the issue was generally more complicated and the central issue,
which I do recall very acutely in respect of the legal position
on the Iraq war, went back to whether there was an original decision
by the Security Council under Resolutions 678 and 687, which allowed
for military action and whether, as it were, that had since been
refreshed by Resolution 1441 and whether the conditions in 1441,
which could provide for that refreshment to become active, had
been fulfilled. I am happy to spend the next hour explaining why
in my judgment the decision that was reached by Lord Goldsmith
was correct, and that was basically where we had got to. The Prime
Minister is on the record in public as saying what he thought
the nature of the threat was. As far as the SFO decision is concerned,
again I am sorry I do not have the text of what Mr Blair said
at the time, but what I do recall was that there were—I
think it was on 16 December—linked statements, one made
by the head of the SFO and another one made by the Attorney downstairs
here and repeated by Mike O'Brien at our end, which set out the
circumstances in which it had been decided to finish the investigation.
It probably would have been better if that is all that had been
said, is the answer to your question.
|
