Examination of Witness (Questions 40-59)
Baroness Scotland of Asthal
12 DECEMBER 2007
Q40 Lord Rodgers of Quarry Bank:
That is a difference between possible and deem.
Baroness Scotland of Asthal: Particularly if
I am in Iraq, if I am doing something which I believe to be in
the Government and public interest and it is not, therefore, possible
for me to attend and if there is not an issue of real moment that
I am asked to attend upon, then I think it is perfectly proper
for me to not attend Cabinet if I am obliged to be doing other
duties. If the Prime Minister ever asked me to come notwithstanding
my other duties, of course I would go.
Q41 Lord Lyell of Markyate: Briefly,
I think there was a change when Lord Goldsmith began to come regularly.
It certainly was not my experience, during my five years, of going
regularly. I went when there were specific issues, but I can say
that there were three or four Cabinets in a row when I did just
get an invitation for no particular reason, and there was discussion
amongst senior ministers and we decided that that was not a wise
thing to do. I think the great tradition of the office is that,
although it is of Cabinet rank, in order to maintain both the
perception of that independence as well as the reality, there
is a great deal to be said for not doing so, for not attending
every Cabinet.
Baroness Scotland of Asthal: I think that is
a view that has been expressed. Another view has been expressed
slightly differently, namely that it is far better for people
to get legal advice early, particularly when they are debating
issues or issues are crystallising, than to get advice after it
has crystallised and before you can change things. I think there
has been an issue as to whether it is not helpful (and I am putting
this because we have not come to any view), particularly bearing
in mind that in the future you may have a Lord Chancellor, who
always used to be round the table all the time with his rule of
law hat, who may not be a lawyer, in those circumstances, to have
someone who does have that legal discipline, who can perhaps make
a contribution, a judicious contribution, when the need arises.
I think there is a whole area of discussion here. There are those
who believe that the Attorney should always be there for those
reasons, and there are those who believe that the prior position
should be maintained, but I also say that there is this new issue
as to the Attorney's role in the joint or tripartite relationship
with the Office for Criminal Justice Reform and the fact that
the prosecutorial policy position is still one the Attorney should
discharge, and that is a matter which, of course, is being looked
at and discussed.
Q42 Lord Morris of Aberavon: When
did this practice start in modern times of regularly attending
Cabinet? Was it under Lord Goldsmith? The last formal member of
Cabinet, if I recollect correctly, was FE Smith, and that would
be in the 1920s, if not earlier. Since that time he has not been
a member of the Cabinet. I did not attend regularly, although
I attended all the Kosovo war cabinets, not the Cabinet itself.
Is this a change that has occurred fairly recently?
Baroness Scotland of Asthal: I am not sure.
I have to say to the Committee I have not investigated this myself,
so I cannot say to you it occurred when Gareth Williams was Attorney
and then when Peter Goldsmith was Attorney. I am not sure as to
when precisely the change occurred.
Q43 Lord Morris of Aberavon: Can
we have a note on this, if you do not mind?
Baroness Scotland of Asthal: I would certainly
be very happy to do that.
Chairman: Thank you very much indeed.
Q44 Baroness O'Cathain: In this Committee's
report on relations between the Executive, the judiciary and Parliament
we recommend that, "Where a department has any doubt about
compatibility of a bill with Convention rights, ministers should
seek the involvement of the law officers at a formative stage
of policy-making and legislative drafting." What has been
your experience of involvement at an early stage?
Baroness Scotland of Asthal: I think the Attorney
is approached on a number of different areas and at different
stages. So, there will be occasions when departments will approach
my office, but they basically approach my office at a time when
they are worried and/or unsure, but you will know that, in terms
of the certification of priority, all of those can be overviewed
by the Attorney General's office and so we will see them.
Q45 Baroness O'Cathain: You did say
"can be"?
Baroness Scotland of Asthal: They are.
Q46 Baroness O'Cathain: They are
not by automatic right?
Baroness Scotland of Asthal: No, they are, because
what will happen is that we are asked, through the Cabinet Committee
process, to look at legislation, and my office has the opportunity
to scrutinise the certificates that are given, and if there are
issues of concern in relation to compatibility, we are able to
raise those as well as issues being raised with us.
Q47 Baroness O'Cathain: On all the
bills we get they are certified by the Secretary of State whose
department is responsible for the bill that they actually comply
with the Convention. Does that mean the buck stops with the Secretary
of State or does the buck actually stop with you? If it stops
with you, should it not be that the Attorney General—
Baroness Scotland of Asthal: No, the buck stops
with the Secretary of State, the person who signs the certificate,
because you may sign the certificate having obtained advice.
Q48 Baroness O'Cathain: I see.
Baroness Scotland of Asthal: The advice of the
Attorney, or lack of advice of the Attorney, would not necessarily
be something which would be discussed.
Q49 Baroness O'Cathain: Taking that
to its logical conclusion, there would never be a bill then that
you would not have agreed with if it had been signed by the Secretary
of State under the terms that we normally see, that the Convention
applies and that everything is all right?
Baroness Scotland of Asthal: I think this is
an interesting discussion, because, of course, you are now all
asking me that which I am not entitled to do, that is to say when
I have or have not—
Q50 Baroness O'Cathain: Excuse me,
Attorney, I did not ask you to do it. I am asking you the question,
would that be the way you would do it?
Baroness Scotland of Asthal: I think I can put
it in this way. There is an opportunity for the Attorney to look
at and question the certificates or the intention to sign certificates.
It is, in the final analysis, a matter for the Secretary of State
who signs to be satisfied that they are compatible when they sign
it.
Q51 Lord Woolf: I wonder if before
I come to the main thing I am going to ask you about, I can ask
you about some provisional matters. The Attorney was always regarded
as head of the Bar. Are you still regarded as head of the Bar?
Baroness Scotland of Asthal: I am indeed.
Q52 Lord Woolf: The Attorney always
used to have a special relationship with the Treasury junior,
and it was the practice of having a common law Treasury junior
and a Chancery Treasury junior. That practice, I believe, has
just been departed from to this extent, that somebody who was
not a Chancery practitioner has been appointed a Chancery Devil.
Was this an indication of a difference in the relationship?
Baroness Scotland of Asthal: I do not think
so. I think what has always been the case (and you will be very
familiar with this) is that the person most and best suited to
the job is always appointed, and I think we have never had anyone
who is not acknowledged to be a person of real talent and acuity
at the Bar because we have wanted the very best to take that job,
so I do not think that anything should be construed as a result
of this change.
Q53 Lord Woolf: Is there any practical
difficulty arising in regard to Treasury Devils and the ability
to get the best person to do the job, because whereas in the past
it was understood that you would have a right, if you wished to
do so, to become a High Court judge at the end of the period,
that can no longer be assured because of the Appointments Commission?
Baroness Scotland of Asthal: I do not know whether that has had
any significant impact. The truth is, of course, if you choose
someone of unsurpassed excellence it would be reasonable to suppose
that, unless, of course, they did not discharge their duties honourably
and well, they would be of the calibre to entitle them to be considered
for High Court appointment. I do not think there has been any
suggestion that that is a problem. Indeed, one of the things that
I have been really encouraged by and grateful for is the very
high quality of the people, not only who are part of my department
in the Attorney General's Office, we tend to get the very best
of the Government Legal Service still coming to the Attorney,
but also we have some superb, really first-rate Treasury counsel,
and the people who we have on the list are, I think, amongst the
very best of the Bar. So, if we come back to this whole pond of
independence, you do not just have the Attorney General, you have
the best of the Government Legal Service and very high quality
counsel to assist the Attorney in coming to the decisions that
the Attorney has to take. I will not say that they are always
available at three o'clock in the morning if suddenly we have
to make a decision, but that ability to cull advice from the very
best of the Bar, I think, is fundamental to the high quality of
the advice that the Attorney General's Office is allowed to give
and does give. I think we would not be as good if we did not have
those wonderful members of the Bar upon which to call.
Q54 Baroness Quin: I just want to
come in on a supplementary before your main question. You talked
about the qualifications for the job. Does it not seem a little
bit strange that in government there are one or two positions
which are basically reserved to people with particular backgrounds,
whereas, for example, you could become Foreign Secretary without
having any previous interest in foreign affairs or the Arts Minister
without ever having shown the slightest interest in the subject
before?
Baroness Scotland of Asthal: I think it comes
back to whether you think understanding of the law is something
which is fundamental to government and fundamental, therefore,
to the Attorney's role. There are many other levels of expertise
you can gain from outside experience. The problem, I would have
thought, in having an attorney who is not a lawyer is that quite
often the Attorney is asked to determine between a number of lawyers
and so you have legal opinions coming, for example, from a number
of different departments. They may all come to perfectly sound
views. For instance, it may be that three different departments
come to different views as to what the law is in relation to statute
X. Each of those decisions fall within the ambit of reasonable
disagreement, so they are all inherently reasonable, but they
are different, and you have to come up with one view which would
bind the whole of government. You tend to need somebody who understands
the legal mind and the legal concepts to be able to do what is,
in effect, almost a mediator's role, to determine what was the
essence of what Parliament intended, "What did we as a government
intend?" and now, "What is the construct that we must
now come to?", which may be will not make everybody happy
but actually gives voice to what the law actually is. That, I
think, if I may respectfully say so, does need a lawyer to do
that, and so it may be that the last remaining role in government
which does need special expertise will be the Attorney. We have
already determined that the Lord Chancellor no longer needs to
be a lawyer, but I think law is fundamental to democracy—that
is my view—the rule of law is fundamental, and there does
have to be, I believe, someone responsible to guard that in the
public interest in government. We have benefited from there being
an attorney for 700 years. Whether that attorney is inside or
outside government, of course, is a moot point, which we have
discussed, but I do not think anybody suggests that the Attorney
or the person who gives legal advice to government should not
be a lawyer. I think that would be a perilous course upon which
to embark.
Q55 Viscount Bledisloe: Should we
not add to that list of things that have to be considered an ability
to judge what judges are likely to decide? After all, you are
not in the end trying to get the right answer, you have trying
to get the answer that the judges will say is the right answer.
Baroness Scotland of Asthal: I think one of
the benefits that we traditionally have had in terms of having
a senior lawyer to do this job is that they do understand the
law, they understand the courts and they understand the possible:
because what you are doing as a lawyer constantly is having to
make judgments, not just on the arguments but which argument is
likely to find favour and which argument, no matter how ingenious,
or delightful, or extraordinary and interesting, may not actually
get you home at the end of the day, and that is all about judgment
and that judgment comes with a deal of experience and that is
why we have always had, historically, senior lawyers do this as
opposed to junior.
Q56 Lord Woolf: I wonder whether
perhaps, following on from that, because it is an appropriate
moment, I can go straight to my supplementary and then come back.
Because of what you have just said, is it your intention, when
it is possible to do so, to appear as counsel on behalf of the
Government or even as an amicus to help the court, which
is another traditional role of the Attorney which has always had
high priority, and if it is your intention, does that apply also
to Strasbourg or Luxembourg?
Baroness Scotland of Asthal: I certainly have
already appeared, I appeared on an unduly lenient sentence, and,
when able to do so, I would very much like to continue to appear.
There is an issue as to how often one can do that because of the
burdens of office, but I think it is certainly something that
I would like to continue to do. One of the advantages of having
a practising lawyer as Attorney and Solicitor General is that
we are, of course, the only members of the Government who are
still in practice and able to go the coal face, see what is actually
happening in courts ourselves, whether it is by representing or
not, and then come back, and that does inform policy in terms
of what happens. For instance, I know that the Solicitor General
in the past has gone and prosecuted lists in the magistrates'
courts. Rather than just having someone tell you what is happening
in courts, it is a really good thing for you to go and taste and
see yourself, and, as a result of doing that, I know the last
Solicitor General, Mike O'Brien, learnt a great number of things
that, I think, he would not have learnt had he simply listened
to that which others had told him; and I know that that is something
that my Solicitor General is quite keen to do. There is an opportunity
for us also to emphasise the things that we care about passionately.
I care passionately about safety and security of children, about
domestic violence, about rape, about those other issues, and one
of the reasons, in fact, I did the unduly lenient sentences, it
was by no means necessarily an easy issue, but I wanted the court
to know that this is something the Attorney and, therefore, we
as a government, cared about very much, the protection of children
was something which was very important, and I think there is an
opportunity, therefore, when there are issues like that, where
it is appropriate for the Attorney and Solicitor General perhaps
to show their commitment to issues and be able to address the
court directly about why the Government feels that making a stand
in relation to these issues is important, and the court has the
advantage then of testing the Attorney.
Q57 Lord Woolf: The final matter
that I wanted to ask you about is the position where you get advice
in so many matters, often from specialists, who are bound perhaps
to have greater knowledge in that particular area of the law,
but in the end is your position always the same or is it different
depending on from whom you have got advice? Is it a question in
the end of what you think is the right answer, taking into account
any advice that is available?
Baroness Scotland of Asthal: Yes, I think it
is. The important thing is that you can have counsel and, if you
are not sure about something, you can have a consultation with
counsel, you can test it and you can assure yourself that the
advice you are getting is of the highest quality. It is an old-fashioned
way of doing things, but we know that a number of us who have
had the privilege of leading will have in any given case a junior
who specialises in a particular area of law and they can give
you the detail and the understanding of the area but then it is
your judgment as to how you would want to present it to the court
or your judgment as to whether they are sound or not, and that
is why, as I say, I am very grateful to the people that we do
have, because we still attract some of the best minds and it is
of real interest and a challenge when you can have consultations
with some excellent people and you can just tease out with them
whether there is not a different way for some of the issues you
are concerned about to reassure yourself that you have come to
the right conclusion.
Q58 Lord Woolf: I must say, what
you say is something I agree with entirely, but I think there
is the other aspect of what you have just said, and that is to
be the Government lawyer exposes you to a variety of work which
it would be very difficult to get in any private practice.
Baroness Scotland of Asthal: It does. What is
quite interesting, too, is because as the Attorney you have oversight
of all the different areas, you are able to bring that understanding
to the new issues that maybe one department is not aware of and
there are conflicts that may be given rise to by virtue of a department
quite clearly concentrating on its own area of expertise but not
knowing that there is another case coming up in another area where
we may actually be saying something slightly different, and, therefore,
you have to understand that oversight in order to advise with
the appropriate degree of care.
Chairman: Thank you.
Q59 Viscount Bledisloe: I want to
turn to decisions to prosecute in individual cases. I assume you
accept that in line with Gouriet it can be right to take the public
interest into account as well as the merits of the individual
case.
Baroness Scotland of Asthal: Yes, I do.
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