Examination of Witness (Questions 20-39)
Baroness Scotland of Asthal
12 DECEMBER 2007
Q20 Lord Smith of Clifton: If we
were to move to a situation in which the Lord Chancellor had no
background in the law and the Government's chief legal adviser
was, say, a career civil servant rather than a ministerial colleague
chosen by the Prime Minister, do you think there would be a risk
that ministers would be less respectful of the need to understand
and act upon the requirements of the rule of law?
Baroness Scotland of Asthal: I think many of
the respondents (and we referred to this, of course, in the consultation
paper) have pressed the importance of having someone of comparable
status being able to advise, assist, if necessary challenge a
fellow minister in a way that is helpful, and there has been a
question raised that, if that person was outside of government,
would they have the same sort of efficacy and/or weight given
to the view? It has been, of course, of interest, taking up the
point that Viscount Bledisloe has raised, that quite often you
will get advice from external counsel and others will still ask
for the advice of the Attorney, and so there does appear to be
something else which reaffirms that. I am interested that Viscount
Bledisloe should have made the reference to outside counsel, because
quite often outside counsel may just say exactly what internal
counsel has said, but having someone else say it is always what
is very helpful.
Q21 Lord Smith of Clifton: Should
the Attorney General's role in relation to the rule of law be
expressly recognised in statute?
Baroness Scotland of Asthal: That has been an
issue for debate. One of the things that have arisen is because
the Attorney's role has developed over time and does not have
a statutory framework, is there now a time when that should change?
Some have suggested, for instance, should we change the Attorney
General's oath. When I took my oath, it is the most wonderful
16th century oath, but I was asked to use my cunning on behalf
of Her Majesty. If I could find it, I am sure I would use it with
great facility, but that is because cunning, of course, has changed
in its perception. It was your wisdom, your acuity, your ability
to understand that was really being talked about in that old-fashioned
way. So some have said should we now bring the oath into the 21st
century and make it clearer as to precisely what the Attorney
has to do? What does it mean to act as guardian of the public
interest and be there as the bulwark for the rule of law? Should
there be something expressly said in the oath which makes that
clearer? Those, of course, are things that we are going to look
at.
Q22 Lord Smith of Clifton: Lord Bingham
stated recently that judges are "bound to construe a statute
so that it did not infringe an existing constitutional principle
if it were reasonably possible to do so". Is not the implication
that, if it were not possible to construe an Act of Parliament
in such a way, then judges might feel it necessary to rule the
Act illegal? Under section one of the Constitutional Reform Act
2005 the rule of law is classed as "an existing constitutional
principle". Can you therefore envisage a situation in which
a judge rules that an Act of Parliament is illegal because it
breaches the rule of law, and what are the implications for the
principle of parliamentary sovereignty?
Baroness Scotland of Asthal: The first thing
to say is, of course, parliamentary sovereignty remains and is
supreme, and of course the courts will construe the Acts made,
particularly in relation to the European Convention on Human Rights,
as to be compliant as opposed to non-compliant, but we are still
left in the situation that, of course, we do not have judge-made
law, Parliament makes the law, and it is still the judiciary's
responsibility to interpret Parliament's intention in a way that
is consistent with the framework given to it by the legislation.
So, none of that has changed, but, of course, there is now a new
development, I think, as a result of the way in which the Convention
has been interpreted through the Human Rights Act, as to whether
we should extend it beyond that. It is a very interesting debate
that we are now having as to have we changed the ambit of those
issues in a way that changes the constitutional realignment? Part
of the Governance of Britain debate, I suppose, has led
us to look at that issue more carefully.
Q23 Chairman: Could I ask briefly,
pursuant to Lord Smith's question, whether the draft Constitutional
Renewal Bill will include proposed reforms to the role of the
Attorney General?
Baroness Scotland of Asthal: I cannot say that
it will and I cannot say that it will not because the consultation
period has concluded, as I said, but our conclusions have not
been arrived at yet; and I need to make that clear to this Committee
because we are going to look very, very carefully at the detail,
and although the majority may be saying one thing, if we scrutinise
the minority views and the minority views are seen to have some
knotty, difficult and important issues, then they may have to
be given greater weight than at present appears likely. I think
I need to make that absolutely clear, because it would be quite
wrong if, having gone away and scrutinised those submissions,
we were to find that there were things within it that actually
do make us think again or that the contributions that have been
made by others going in one direction actually might not go in
one direction if those issues were better taken into account.
I just need to say that is where we are at. I am not in a position
to say we have come to any view at all.
Q24 Lord Lyell of Markyate: Attorney,
I think you are quite right to give that answer, if I may say
so. You are having consultation; you must keep an open mind. I
have made some contribution. I am very sorry, I could not come,
for reasons of family illness, to your particular meeting, and
I made it clear that I agree with what seems to be the majority
that there is not a case for fundamental change, but there will
be benefit from arguing it through and clarifying more clearly
so as to overcome this position of alleged perception. I actually
do not think the adverse perception is anything like as wide as
its proponents make out. However, those who suggest change are
calling for the Government's Chief Legal Adviser to be a career
lawyer who is not a politician or a member of the Government,
and it is said that advice offered to government by such a lawyer
would be perceived—you see that word again—to be more
independent than that offered by a politically appointed Attorney
General. What do you think critics of the current system mean
by the term "independent" in this context?
Baroness Scotland of Asthal: I think they mean
that the individual has no political affiliation. There is clearly
the perception that if one is attached to one political party
or another that a fortiori will besmirch or colour the
nature and quality of the legal advice that has been given, that
it will be slanted one way or another, and the way in which, therefore,
you get away from that possible perception is to choose a lawyer
of distinction outside of government who does not have any known
political affiliation. That is quite an interesting idea. If you
think of the majority of lawyers, that may be quite a challenge,
but that is the perception that people have, that if you have
an alignment with a political party of any sort, that disables
you from giving independent, objective legal advice, and there
are some who feel that very strongly indeed.
Q25 Lord Lyell of Markyate: Can you
give an instance where any previous Attorney General has allowed
his advice, as far as you can see, to be besmirched, or somewhat
besmirched, and, if I can ask the direct question, would you ever
allow your advice to be tainted in this way?
Baroness Scotland of Asthal: I have to say,
absolutely not. I think any lawyer worth their salt would probably
give you the same answer. There have been no attorneys general,
to my knowledge, where there has ever been a suggestion that the
political complexion changed the way in which they gave their
advice. It is quite interesting, no-one has impugned the Attorney's
decision. Of course there were issues in relation to 1924 and
what happened then, but certainly in recent history there has
never been any such suggestion.
Q26 Lord Rowlands: It might not apply
to sixteenth century attorneys general!
Baroness Scotland of Asthal: It may not.
Q27 Lord Morris of Aberavon: May
I come to pre-appointment hearings, a curious but interesting
suggestion in the Governance of Britain that the Ombudsman,
the ruling Government and parliamentary one and the various independent
inspectors should be subject to independent hearings. Has anything
emerged in the consultations that you have had about the role
of the Attorney about that kind of suggestion? What is your reaction
to it, and, specifically, should the Attorney be added to that
wide list of great characters?
Baroness Scotland of Asthal: There has not been
a great deal of attention on those issues. The Attorney at the
moment is not accountable to any select committee. There have
been suggestions that should that occur: should the Attorney,
in the same way as the Lord Chancellor and/or the Home Secretary,
be answerable to a Parliamentary select committee for review and
matters of that sort. That has not played a huge part in the consultations
but there are certainly things that we should look at. It has
been quite interesting how many of the more difficult or more
avant-garde suggestions have not seemed to garner a great deal
of support. Those who propose it say that does not diminish its
merit, they simply say that these are times for change, and so
I do feel, almost on behalf of the minority voice who have put
this forward, I should say to this Committee that they hold their
views very strongly indeed, particularly the issue raised by the
noble and learned Lord Lyell on having someone who is not a minister.
The minority who hold that view hold it quite passionately.
Q28 Lord Lyell of Markyate: Could
I briefly follow up on that, because the Attorney General advises
the Government and he must be able to bind the Government. The
Government must take his advice or he must certainly go and there
is a constitutional crisis. Is not one of the strengths, therefore,
of the present position that the Attorney is truly accountable
to Parliament? Parliament can ask very difficult questions and,
therefore, get a level of accountability which it would be much
more difficult to achieve with a career lawyer who was some sort
of public official.
Baroness Scotland of Asthal: I think that is
a point that has been made very, very strongly indeed, and the
question that I have been asking, and a number of people have
been asking too, is if this lawyer is a public official outside
of government, how do you get that parliamentary accountability?
I think this Committee will be aware that in the six years that
my predecessor was attorney there was some very rigorous questioning
by both Houses of Parliament. At the moment, of course, we have
the Solicitor General in the Commons and the Attorney in the House
of Lords, but there was very rigorous cross-examination and debate
about a number of prosecutorial and other decisions, and Parliament
could have its say. In undertaking this consultation, because
it is very interesting, the idea of not having a minister is,
I think, a very interesting concept, we have asked: how would
you supplement or exchange that rigour? What would you put in
its place? The contributions do not actually explore that in any
way successfully so far. I have not read all of them, maybe somebody
has, but how do you get that accountability has been a loud question
that has been asked because we want to improve the Attorney's
accountability, not reduce it, and we have not yet had a persuasive
answer.
Q29 Lord Rowlands: As we have opened
up the question of accountability, perhaps I might put a question
I might have put to you later. Which of your roles are accountable
to Parliament as at this moment?
Baroness Scotland of Asthal: We are accountable
by way of questions and debates, and we are invited, as I have
been invited today, by committees to come an give evidence and/or
to speak to them, and I do not think historically the Attorney
has ever declined to attend on any occasion before any committee
that they have been asked to attend, but there is not a formal
committee which is specifically tasked with overseeing the Attorney's
discharge of the Attorney's duties.
Q30 Lord Rowlands: I think one of
the problems that has arisen is the problem of grappling with
the concept of parliamentary accountability when governments and
attorneys general have said, "Well, we cannot tell you whether
we have been advising and also the nature of our advice."
How can you have that and still claim parliamentary accountability,
because that is almost the essence of parliamentary accountability?
Baroness Scotland of Asthal: I think it is because
of the division between the legal advice that the Attorney gives
to the Government as a client and the accountability that one
can have for prosecutorial and other policy issues about which
you can speak. So, it would clearly be improper to talk about
legal advice on individual cases or issues that are sub judice,
not least because it is felt that the departments have to be free
to be able to ask for the Attorney's advice and to receive the
Attorney's advice without it necessarily having been lauded that
that advice has been sought, because we want people to continue
to seek the Attorney's advice whenever they feel inclined, and
the one thing that would not be helpful is if departments felt
that it was unwise to seek the Attorney's advice because that
would become known and something would be made of that. One of
the advantages is that you can give your advice confidentially
in a way that makes it more likely to be absorbed.
Q31 Lord Rowlands: In that answer,
therefore, am I right in saying that two of your three roles are
not really accountable to Parliament in that sense?
Baroness Scotland of Asthal: You are accountable
to Parliament in terms of your guardianship of the public interest,
you are accountable to Parliament in relation to prosecutorial
supervision and superintendence, because that is of a policy and
a general nature, but you cannot disclose to Parliament the nature
and content of the legal advice that you give as legal adviser
to Her Majesty, to Parliament and to government because, of course,
the Attorney also acts as the adviser to Parliament and Her Majesty
too; so in that role of legal adviser you are not entitled to
disclose the particular nature of the advice that is sought from
you.
Q32 Lord Lyell of Markyate: In the
hope of helping to clarify this often misunderstood position,
is it not important to distinguish between the convention and
the legal position? Every single citizen, and it applies to government,
has a right to take legal advice and for that to be done confidentially.
Baroness Scotland of Asthal: Absolutely.
Q33 Lord Lyell of Markyate: That
is the law of confidentiality and it is a convention in Parliament,
exactly as you have said, that the Attorney does not reveal whether
they have advised or what their advice is, because government,
obviously, needs to be able to take advice in confidence, but
the privilege is actually not the privilege of the Attorney General,
it is the privilege of the Government itself, and if it wishes
to release that, as indeed it often does—on the Maastricht
matters I came on a number of occasions and gave to Parliament
the advice that I had given to government—the government
can waive its privilege?
Baroness Scotland of Asthal: Absolutely.
Q34 Lord Lyell of Markyate: Some
may think that it might have been wiser to have waived it a little
bit more often in recent years, but it can do so and, therefore,
it does not need to be so secretive, but there is a very good
reason for the general confidentiality.
Baroness Scotland of Asthal: I think that is
absolutely right. As Lord Lyell says, it is similar to the situation
that any client would be in. The privilege belongs to the client
and the client is entitled to waive that privilege if they deem
it to be appropriate so to do. But, of course, there are difficulties
about waiving that privilege too often, because it then is said
that you are only waiving the privilege when it suits you. I know
historically there has been a view that one should not waive the
privilege because you cannot waive the privilege in fair weather
if you are not prepared to waive it in foul. There have been a
number of occasions, I think, when the Government has very much
wanted to waive the privilege because it has felt that if anyone
could see what we saw, of course, they would be so much happier,
but then you have got to be content to do it on other occasions
too, and I think (and I can say this because I have not been doing
this job for very long) that, looking back over the last 70 years
or so, there have been a number of occasions when the Government
has taken the view that to preserve the tradition, to preserve
the general position, has been more valuable than the advantage
of allowing it to be waived for this particular circumstance.
There is always that balance that you are probably better off
keeping it as opposed to using it in a way that may be seen by
others to be simply advantageous when you want it. I know that
looking historically. I am sure Lord Lyell will remember that
there have been times when the governments of the day have argued
and debated that issue.
Lord Lyell of Markyate: I quite agree.
Q35 Lord Morris of Aberavon: My understanding
is you would take a robust view to maintain the status quo, despite
the seductive tones of various government departments that would
like to reveal—I think I have that as regards Japanese compensation—and
a formula was devised that the department had consulted and obtained
legal advice at a higher level, perhaps immodestly, but that would
be your position?
Baroness Scotland of Asthal: I think there are
real advantages in having the situation that we now have where
the departments are able to come to the Attorney, when they need
to come to the Attorney, confident that they can do that confidentially.
Q36 Lord Rodgers of Quarry Bank:
I would be tempted, I think, to explore what I call the mystique
of the independence as seen by attorneys general, but I think
at the moment my particular question is to ask you, if you will,
to clarify—you have already said it but if you would be
kind enough to clarify—whether the independence would be
increased if the Attorney General relinquished responsibility
for policy aspects of the criminal justice system currently handled
by the Office for Criminal Justice Reform, leaving responsibility
for the role to the Ministry of Justice and the Home Office?
Baroness Scotland of Asthal: I think that has
been a matter which has exercised quite a lot of attention, and
I think the reason it has is because the Committee will know that
this position has evolved over the last few years and the whole
purpose of creating the Office for Criminal Justice Reform was
to try and bring the criminal justice system into better alignment,
each part of it. You will remember that there was the Justice
for All report which Lord Justice Auld was responsible for,
which basically said that the criminal justice system was not
a system because you had disparate silos working in disparate
ways and what now needed to happen was for the three independent
parts of the criminal justice system to come together in a way
that would enhance synergy and make it better understood, and
that is where the Office for Criminal Justice Reform came from.
The Attorney, of course, remains responsible for prosecutorial
oversight of all the prosecutors who are responsible for that
part of it. The question that has arisen is whether you can have
the advantages that we have culled from that new framework, having
the Office for Criminal Justice Reform, having the Lord Chancellor,
the Attorney General and the Home Secretary working together as
part of the National Criminal Justice Board, formulating systems
so that they work and are practical and are for the benefit of
the public, whether you can have that conjoined approach without
the Attorney discharging part of the policy role in terms of prosecutorial
policy, and there is a debate now as to whether the Attorney should
be simply responsible for operational prosecutorial policy or
more broadly, but I think that is a debate that is currently on-going
because of the effective and efficient way that the Attorney has
been able to contribute to the better maintenance of the criminal
justice system. If you change and revert back to the old system,
would you lose some of the real advantages that we have culled
from working together or not? That is a very active debate on
policy.
Q37 Lord Rodgers of Quarry Bank:
May ask a supplementary about your role in the Cabinet? In the
past (and there may have been exceptions) the attorneys used to
be summoned to Cabinet because there were big issues. Our understanding
is that when you were appointed you may attend Cabinet as a matter
of routine. If this is the case, without in any way breaching
confidences, do you see yourself when you are there as dealing
only with attorney general type issues or would you feel that
you could participate in general discussions? You have been a
minister in other departments, the Foreign Office, for example.
If Cabinet is discussing an issue which is not related to your
attorney role but out of your political background and ministerial
knowledge, what do you say? Do you participate or do you sit silent?
Baroness Scotland of Asthal: Firstly, it would
be quite improper for me to disclose what happens at Cabinet,
as I am sure you are very well aware.
Q38 Lord Rodgers of Quarry Bank:
I am asking about the process, not about the subject.
Baroness Scotland of Asthal: The first thing
relates to your question in terms of policy. The Attorney at the
moment shares criminal justice policy with two other secretaries
of state, so there is a question as to whether it would be proper
for the Attorney to participate in that discussion. Having taken
on the role of Attorney, I have decided that, pending determination
of this consultation period, I should be circumspect in the amount
that I participate. I am always invited to Cabinet. I attend.
I do not attend always; I attend whenever I deem it appropriate
to do so, and I will determine how that situation will change
after the consultation period. I have taken the view that, until
this consultation is concluded, that is the best way forward,
but I think it would be inappropriate for me to answer that question
in any further detail.
Q39 Lord Rodgers of Quarry Bank:
You have said you "deemed to attend Cabinet". That is
rather an unusual expression, because the Prime Minister invites
you to attend. For you to say you deem to attend would be rather
strange.
Baroness Scotland of Asthal: The Prime Minister
invites me to attend, I have been invited to attend every single
Cabinet. It has not always been possible for me to attend every
single Cabinet.
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