Examination of Witness (Questions 1-19)
Baroness Scotland of Asthal
12 DECEMBER 2007
Q1 Chairman: Baroness Scotland, may I
welcome you very warmly to the Committee. We are not being televised
this morning but we are being broadcast on the audio. May I ask
the first question? We would be extremely interested if you would
share with us what has prompted the current debate about reform
of the Office of the Attorney General. Is it to do with a perceived
adverse perception of the office and the need, perhaps, to enhance
public confidence or with real practical difficulties?
Baroness Scotland of Asthal: I think the first
thing to say is it should be seen in the context of The Governance
of Britain document, which, as you know, was issued by the
Government, looking at the constitutional realignment that may
be contemplated and how to reconnect or better connect the public
with things that are done in Parliament and the Executive—that
was part of the framework—but also, I think (and you have
seen and had the advantage of reading the CASC Report) it is about
an issue as to whether there is a perception that the role of
the Attorney General has within it some inherent conflicts, and
this Committee will know that this is an issue that has been brought
up from time to time in relation to the Attorney's role. Therefore,
it was considered right that we should have, for the first time
in the 700 years of its history, an opportunity to look again
to see whether the disparate roles currently discharged by the
Attorney should properly remain as they are or whether there could
not be another different construct which would better fit it for
the 21st century; and it was on that basis that we had a very
open consultation. You will note the consultation period concluded
on the thirtieth of last month and we are now considering the
responses that we have had to it. We have had about 50 written
responses and we have also held a series of seminars and meetings,
including, in fact, a very useful session with members of both
Houses to which a number of people came, some of whom, of course,
are in this room and part of this Committee. We thought it was
very important for us to have a very comprehensive consultation
so that we could have all views and have an opportunity to consider
them most fully.
Q2 Chairman: Now that the consultation
period has closed, could you give us an indication of whether
the balance of opinion amongst the consultees appears to favour
or not favour a change to the role of the Attorney?
Baroness Scotland of Asthal: I would be very
happy to do that. Could I just say, too, that we will be obviously
very anxious and interested to hear what this Committee has to
say, and we would want to take this Committee's views into account
before coming to any conclusions? I want to make that plain. The
real thrust of the report so far has been that the majority of
people feel that there is nothing of fundamental difficulty in
relation to the Attorney General's role. Some have suggested that
there need to be some changes. The real issue has been in relation
to the power that the Attorney has to direct in relation to individual
prosecutions. That is an issue which has caused quite a lot of
interest. As I say, we have not concluded all the analysis of
the contributions that have been made. Most people seem to believe
that there is not an inherent difficulty in the Attorney remaining
a minister. There is some concern as to whether the Attorney should
or should not attend Cabinet, there has been an issue raised in
relation to the criminal justice policy role that has been adopted
by the Attorney and whether that should be something that should
be maintained, and there has been a suggestion, a minority suggestion,
that the Attorney should be someone who sits outside of government,
but that has been very much seen as a minority view.
Q3 Chairman: Do you think, Lady Scotland,
that there is any public misunderstanding and, indeed, misunderstanding
within government of the role of the Attorney and, if so, what,
if anything, should be done to rectify that?
Baroness Scotland of Asthal: I think there is.
One of the strong impressions that certainly I have had during
this consultative period is that there is not a real understanding
of what the Attorney does and when the Attorney does it. I will
just give an example which many people have used in relation to
BAE Systems. That is an inherently difficult decision, no matter
who is responsible for undertaking it. There is a general misconception
that that was a decision taken by the Attorney. Of course it was
not. It was a decision taken by the Serious Fraud Office Director.
However, that is not well understood in the public. There is misunderstanding
in terms of the three roles that the Attorney plays, one as adviser
to the Government, Her Majesty and Parliament, the second in relation
to heading up the prosecutorial authorities and being responsible
for their superintendence and supervision and, the third, acting
as an independent guardian of the public interest. Those issues
are not understood well and one can understand why, historically,
that was so, because the Attorney's advice is given to government,
it is not disclosed, it is not disclosed in terms of whether the
Attorney has been asked to give advice, and so in the past, I
think, the public face of the Attorney was perhaps not at the
forefront, whereas now having a better understanding of the public
generally that the Attorney is there to uphold the rule of law,
to be the guardian, is perhaps of greater interest and importance
now that the role of the Lord Chancellor has changed. Certainly
that is the thrust of comments that have been made by a number
of contributors, that the significance now is that the Attorney
remains the only senior lawyer in government who has to be a lawyer.
The Lord Chancellor may be a lawyer but need not necessarily be
a lawyer provided they have the relevant experience. So, I think
there is an increasingly large communication role so that the
public and, indeed, colleagues within government better understand
the function of the Attorney, but I have to confess to this Committee
that I had thought I really understood with great particularity
the role of the Attorney having had the privilege of acting as
a government minister for eight years, being a lawyer and having
worked very intimately with a number of attorneys, certainly in
the last six years. I too have been surprised that I did not comprehensively
understand the intimate interrelationship. One of the things that
have become very clear to me is the importance of the Attorney
acting as the head of the Government Legal Service in being available
to all members of the Government Legal Service as a direct matter
of right so that they can come to ask for the Attorney's help
and support. The roles that the Attorney plays as arbiter, as
part of the supervisory and superintendence role, means that we
are able to work with a number of prosecutorial authorities, including
those who are attached to different government departments, and
I have been very struck by the importance that the Government
Legal Service places on having the opportunity to have direct
access to the Attorney and the importance, for instance, that
a number of Her Majesty's Armed Services and prosecutors within
the Armed Services have to the fact that the Attorney remains
there as a matter of reference, support, but also a firm upholder
of the rule of law with a degree of independence and rigour which
they find of great comfort.
Q4 Baroness Quin: You have partly
answered what I was going to ask. It certainly seemed to me, rather
shame-facedly, as a minister looking back on that time that I
did not really understand very much about the role of the Attorney
General. I wonder if, as a result of this process, whether or
not major changes are made, whether, indeed, you will feel it
important to ensure that ministers and MPs as well as the public
outside do have a clear concept of the role of the law officers
generally and of the Attorney in particular?
Baroness Scotland of Asthal: I do think that
that is incredibly valuable. One of the things that I have done
since becoming Attorney is to create an Attorney General's newsletter,
which is going to be made available to peers, MPs and others,
not least because I think it is very important for people to better
understand what we do, why we do it and how we do it and the services
that are available, and certainly this process has highlighted
to me the need for better communication and better understanding.
So, that is something which has been very important, I think,
that has come out of this process and I would absolutely agree
with you.
Q5 Lord Morris of Aberavon: Attorney,
I am encouraged by your remarks that, following the consultation,
nothing of fundamental difficulty has emerged as regards comments
on the role of the Attorney General apart from points of detail,
which we will return to. Am I right in thinking, if that is so,
that the bulk of the consultees give a contrary view to the trenchant
and radical report of the House of Commons Committee?
Baroness Scotland of Asthal: That does appear
to be so at the moment, but I need to be very cautious, because,
of course, we have culled that impression from the various seminars
and others that we have had and the first trawl of the results
but there are some real issues, notwithstanding, that have arisen
within the detail of how it is done, the way it is done and whether
there should be changes. The more radical proposals that were
certainly voiced in the CASC Report do not appear to have gained
a great deal of support from those who have contributed so far,
but I think these contributions are quite wide and far-ranging
and I would not like to give an impression that there is going
to be no change because in the detail there are quite some significant
suggestions about how things could be improved and changed, and
the Government itself, of course, is going to look very much to
see how this role will fit within the Governance of Britain
framework and some changes may be advocated as a result of that.
I certainly do not want to give the impression that we are saying
no change because some of the minority views have been very strongly
and cogently expressed and we will need to explore whether they
do not have more merit than at first blush they may appear to
have.
Q6 Lord Norton of Louth: It is really
on what you have already said about the roles of the Attorney.
You have mentioned that there are several and they are listed
in the consultation paper, and you referred as well to a conflict
of roles, and that is part of the debate. Similar claims, of course,
were made about the role of the Lord Chancellor, all the debates
we had three or four years ago. Do you see any parallels between
the current debate and that which took place over the role of
the Lord Chancellor?
Baroness Scotland of Asthal: I think the issue
in relation to the Lord Chancellor was very different because,
of course, we were talking about three different hats, the issue
of the Executive being involved with the judiciary and those matters,
which are constitutionally very different, I think, from the role
of the Attorney, where it has never been suggested that in-house
lawyers have any internal conflict in the exercise of the independent
legal role that they play in giving advice and assistance to their
clients, and so I think that the Attorney's situation is materially
different. When I say conflict, I think all the contributors talk
about perceptions of conflict, as opposed to the reality of conflict,
but there is, of course, this important issue as to whether perceptions
do not of themselves distort the reality and, therefore, how do
you deal with that whole issue. There has never been any suggestion
that any of the attorneys general in the past have ever behaved
in any way other than with total propriety; so there has been
no impugning of the integrity of the Attorney's role, but there
is this whole issue as to how do we deal with perceptions in relation
to it.
Q7 Lord Norton of Louth: It is that
perception point that I would like to follow up. You said that
there may have been a change. What are the reasons for that? The
perception that possibly a political appointee is not able to
carry out a judicial role with an independent mind. Where do you
think that comes from? Is it, as I think you are implying, just
a greater awareness or the Attorney being more in the public eye?
Baroness Scotland of Asthal: I think there have
been a number of issues which have coalesced around the same time,
which, I think, has given rise to some misconceptions, and I think
we have set them out in the consultation paper. I have mentioned
one already. For example, the issue of the misunderstandings in
relation to BAE, who makes that decision. There were also, of
course, at the time of considering these, questions being raised
in relation to the advice in relation to Iraq or the position
that might have arisen in relation to the "cash for honours"
case. We know historically that from time to time attorneys general
past and present have had to deal with troublesome and difficult
issues, but what we are trying to do here is not necessarily just
respond to those issues but to see whether there is anything fundamentally
systematically wrong with the way in which it is currently structured
and, if not wrong, are there things that we could do which would
enhance the rule of law, enhance the efficacy and the transparency
of this role and improve the system to make it better than it
currently is. I think that is certainly something which is very
worthwhile looking at because the Attorney's role has mutated.
There have been various accretions to that role over a period
of time and we do need to look to see whether we now have the
right construct for the 21st century so we get the very best out
of the role, but certainly my experience of the role is it is
very complex. These three hats are well integrated and one of
the things that we are looking at is, if you disaggregate all
or any of them, what are the consequences of that disaggregation?
Will it mean that we will get an improved system, in which case
I think it will be very worthwhile doing? Will it diminish the
efficacy of the role and, therefore, we would have to be very
cautious? This has been a fascinating exercise and we will be
looking very, very carefully at the detail of the submissions
that have been made, because many of those submissions are themselves
complex. I do not want to say they are curates eggs, but some
eggs are perfectly formed and wonderful and others are simply
inherently interesting.
Q8 Lord Norton of Louth: So, essentially,
it is a case of separating process from perception and making
sure there is no change of process as a result of a misperception.
Baroness Scotland of Asthal: Yes, and also being
clear, if there is a misperception, that that is the case and
then thinking, in very concrete terms, as to how we should deal
with any misperception, because I think what is not acceptable
is that the misconceptions should remain, because that would be
very corrosive. We need to think, I think, and, if necessary,
be bold in the way in which we address those misperceptions so
that we arrest them and change them because a continuation of
them, I do not think, would be acceptable.
Q9 Lord Rowlands: Given you have
already described your roles as complex, have you in your experience
so far thought there is a potential conflict of interest? Is there
a potential?
Baroness Scotland of Asthal: I think, in practice,
there does not appear so far to have been. Can I look to the future
and say there never will be? I do not think I can—I have
not got a crystal ball—but I do think that the role itself
is predicated on having integrity. I think that was certainly
one of the submissions that have been made—I think it was
the Lord Chief Justice in his submission—that the most important
thing is that, whoever has this role, I think it was said, should
have integrity. I do feel that I agree with that, because there
are a number of occasions when the Attorney's primary role will
be to be the guardian of the public interest and to act totally
independently of government.
Q10 Lord Rowlands: Embarrass government?
Baroness Scotland of Asthal: Absolutely. I think
one of the things I have certainly understood better is the opportunity
to be brutally frank in a way that is entirely helpful to good
governance of government.
Q11 Viscount Bledisloe: I must confess
that I was somewhat surprised by your remarks about in-house lawyers.
I think my perception at the Bar, and I think the perception of
a very large number of other people, would be that in-house lawyers
were not very independent, that first of all they had rather taken
on the corporate spirit of, "We must be right and they must
be wrong", and, secondly, that they did not like the idea
of telling their boss that he had made a fool of himself and got
it all wrong and, very frequently indeed, that they took the problem
to the Bar so that one could take on that responsibility rather
than having to do it themselves. Is that not something that is
inherent in any role where you only have one client and would
not any other solution than the present one make that worse rather
than better than it is at the moment?
Baroness Scotland of Asthal: I can certainly
understand that you would say that somehow of that perception.
The situation of the Attorney is, of course, slightly different,
because you have the Government Legal Service who give advice
to the various departments, and when they are in need of greater
assistance or there is an area of conflict, they tend to come
to the Attorney to give the final determination. So, in many ways,
the Attorney is used as the counsel of final determination in
the same way as you would go to an independent member of the Bar
to say, "We do not agree", and particularly, "We
do not agree within government departments, who sorts it out,
who says what the law actually is", and that is the Attorney.
Independence, of course, is inherent in the lawyer's role, exercised
in the lawyer's role, because clients really should not go to
a lawyer to hear what they want to hear, they need to go to hear
what they need to hear, and there is quite often a big difference
between the two. If you have a lawyer who tells you what you want
to hear, you usually have a fool for a client and a fool for a
lawyer. You really need someone who will tell you, in a very unvarnished
way, what you need to know so that you can make the most judicious
judgment as to how to present your case in a way that would be
lawful and sound.
Q12 Viscount Bledisloe: I could not
agree with you more, but do you not think that any other alternative
than the Attorney General as it now roughly is would be likely
to make that worse rather than better?
Baroness Scotland of Asthal: I think this is
obviously an issue that is still for final determination, but
I can certainly say to you that the view overall from those who
have contributed so far seems to be that there is significant
merit in retaining the balance that we currently have, namely
with it being a minister having oversight, having that independent
role and the Attorney exercising the judicious oversight that
the Attorney currently has over matters legal in government. That
seems to be the thrust of most of the contributions so far. As
I say, we do need to look at the detail.
Q13 Baroness O'Cathain: First of
all, Attorney, how do we address you? People used to say Mr Attorney.
We cannot say Mr Attorney. How do we address you?
Baroness Scotland of Asthal: I think people
have neutered me. They tend to call me Attorney, without gender.
Q14 Baroness O'Cathain: I do not
think we would ever neuter you, Attorney. One of the points you
made earlier, and I am just thinking about the huge scope of this
job, and from a managerial point of view it was must be absolute
chaos to try and organise it, but you said everybody in the Government
Legal Service has the right to approach the Attorney. How many
people are there in the Government Legal Service? How many heads?
Baroness Scotland of Asthal: About 2,000 people,
but each department will have a head, a legal adviser, and it
has certainly been emphasised to me how valuable and how important
the Government Legal Service sees that opportunity: because there
may be times when the Government Legal Service feels that they
need the help, advice and support of the Attorney to ascertain
whether the advice they are giving is sound and robust, but also
it can be of great assistance if they express a view which may
be controversial or difficult for the department perhaps to understand
if they have the assistance of the Attorney, who can, if necessary,
have very direct conversations in a way that would be helpful.
Q15 Baroness O'Cathain: So, if there
was somebody in one of these departments who actually approached
the head of the legal services in that department and did not
feel satisfied with the response, or whatever, would that person
be able, as a right, to approach you?
Baroness Scotland of Asthal: I think normally
that would not happen, but you could do that. As I understand
it, any member of the Government Legal Service who feels that
they would like to be assisted by the Attorney's advice has an
independent right to approach the Attorney irrespective of what
the department's view may be. For instance, you could have an
adviser, and it is usually a matter for the senior adviser because
if a junior, of course, is concerned about something, the norm
is for them to go to the more senior people in their department,
and that is the normal way it would go, but if you have got the
senior adviser in the Government Legal Service for that department
and there is a concern that they have about any issue, then they
have an independent right to go to the Attorney irrespective of
the view that the department may take; so the Attorney can be
there almost as a bulwark for those who may need the Attorney's
assistance.
Q16 Lord Woolf: Is that because the
individual legal adviser should have the independence you referred
to, and if the independent legal adviser comes to the conclusion
that something which is being done by the department is not appropriate,
then it is a tremendous safeguard to that independent adviser
to be able to go in those circumstances?
Baroness Scotland of Asthal: Yes.
Lord Woolf: I apologise for interrupting.
Q17 Baroness O'Cathain: No, that
teases out what I was really thinking. So, everybody really does
have the right, but in practice it would not necessarily be that.
But you could have a rogue legal adviser heading up one of the
departments. There is always a rogue somewhere, in companies anyway,
but probably not in the Civil Service?
Baroness Scotland of Asthal: Not in the Civil
Service and not amongst lawyers.
Q18 Baroness O'Cathain: Oh, come
on!
Baroness Scotland of Asthal: But there is that
opportunity, and I have certainly had it very forcefully expressed
to me that that is very valuable, because the Attorney is the
head of the Government Legal Service. So, if you like, the lawyers
have a twin-track oversight, one is the departmental oversight
but lawyers are overseen by the Attorney; so you have got that
double insurance policy.
Q19 Lord Smith of Clifton: Attorney
General, section one of the Constitutional Reform Act 2005 states
that nothing in that Act adversely affects the existing constitutional
principle of the rule of law or the Lord Chancellor's role in
relation to the rule of law. You have touched on this, but what
is the Attorney General's role in relation to the rule of law
and how does this role relate to that of the Lord Chancellor?
Baroness Scotland of Asthal: Of course the Attorney
is the de facto law officer and, therefore, it will be
the Attorney who will be asked to determine on issues that pertain
to law as it relates to the Government. So, although the Lord
Chancellor has always had a responsibility in relation to the
rule of law, it has always been the law officers who are responsible
for advising the Government on any particular difficult issue
as to what the legal position is.
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