Examination of Witness (Questions 60-72)
Baroness Scotland of Asthal
12 DECEMBER 2007
Q60 Viscount Bledisloe: Historically
it used to be the Attorney's role to make that decision. Have
you resiled from that somewhat and, if so, how can the Crown Prosecution
Service, or someone like that not involved in politics, judge
appropriately what is the public interest?
Baroness Scotland of Asthal: I do not think
I have resiled or not resiled. One of the beauties of having this
consultation period is to be able to look at that very issue.
The area of the greatest degree of dissonance has been whether
the Attorney should have a power to direct and, if so, in what
circumstance. There has been a number of consultees who have suggested
that the Attorney should no longer have the nolle prosequi,
no longer have any right at all to direct in individual cases.
That should be expunged. That is the one area that has caused
quite a lot of concern and attention. Therefore, some would say,
it should be the Director of Public Prosecutions or the directors
of the prosecutorial authorities, as is appropriate, who should
have the final say in making that balance, yes, in consultation
maybe with the Attorney, yes, having acquired information about
the wider issues that may pertain to government and the Government's
view in relation to the public interest, but that the Attorney
should no longer have the residual right to direct, and that is
one issue that has caused quite a high degree of concern. When
I became Attorney, so as not to prejudge or prejudice the outcome
of the consultation, I made plain that I would not seek to exercise
my power to direct in individual cases save and except in those
areas where statute or the public interest demanded it. There
are about 100 different cases where statute has determined that
the Attorney General should decide on whether there should or
should not be a prosecution, and what has been very interesting
is that in the last year Parliament's desire to have the Attorney,
as opposed to the DPP, determine these issues has continued with
ever-growing appetite, it seems to me. There have been suggestions
in the House of Lords that the DPP should do this: "No, no",
goes the cry, "Go higher, go higher. We need the Attorney
to determine this." So there is that tension and we have
not yet come to any conclusion as to whether it might not be better
to say that the Attorney should not have the right in individual
cases, save in exceptional cases which are in the public interest.
That whole area is probably the most contentious area from the
consultation as to those who say yes and those who say no.
Q61 Viscount Bledisloe: I accept
what I think is your view that there are too many statutes that
require the Attorney's consent and that a lot of those could be
repealed and a lot of those could be delegated to the Director
and other similar people. I am concerned with the public interest
position. Surely it has got to be somebody who has a foot both
in the legal camp and the political camp who judges what is public
interest, and it would be wholly inappropriate for the Director
to say, "The Government tells me this will cause a general
strike, but that is not my worry. Let us go ahead and prosecute."
Baroness Scotland of Asthal: As I say, we are
in the middle of a consultation. That is one of the issues that
is going to be very thorny and we are seeking to deal with. You
are absolutely right, the cases which are clearly public interest
cases, there is a big debate as to whether that should or should
not be retained because it will relate to an individual case and,
in those cases, should the Attorney retain the ability, in the
public interest, to direct or not? It is a very live issue.
Q62 Viscount Bledisloe: Who else
could have it?
Baroness Scotland of Asthal: That is another
question that is being asked. If not the Attorney, who? One of
the issues that has been mooted, quite strongly, in the consultation
period, by some, was whether the Ministry of Justice should take
on some responsibility in this regard. That has been soundly refuted
by the majority. I make no comment whether it is good or not,
but we wait to see, because, as I say, the devil on this is always
in the detail and when we come to scrutinise those who are dissenting,
we may find they have more merit than at first blush, it appears.
That is why I am being very open at this stage: because I would
not want to dismiss that.
Q63 Lord Lyell of Markyate: Following
up on this very important point, I must say, I was rather astonished
at the way the matter was put in the Prime Minister's July statement.
The fact is that you are under a statutory duty, you are appointed
by statute, you have a statutory power to superintend, and that
does involve the power to direct a statutory power. Whatever you
tell the Prime Minister, if you really thought that something
was going badly awry and if, which I am sure would not happen,
the Director in question was being completely intransigent, I
very much doubt if you would let things go awry. The position
really is this, is it not? The power to direct is part and parcel
of the power to superintend, the duty to superintend. Actually
no attorney in modern times has taken a prosecution decision,
but they have consulted very closely on some very difficult cases
with the Director, or one of the directors, at the time and they
have actually always reached agreement and the Director has taken
the decision. But, if you are to have responsibility, you must
have power. You cannot have real power without responsibility,
and that is a very important constitutional point which should
not be lost sight of.
Baroness Scotland of Asthal: I think that is
a powerful point that has been made. The issue is could you retain
the power to consult without necessarily having the power to direct?
You are absolutely right, I have not found occasions, though there
may be, where the Attorney has had to direct in an individual
case; it has been done by consultation. There are those who say
that if you did not have the power to direct, would the Director
of the day be so attentive during the consultation and that, therefore,
that has an impact, and there are others who say, no, no, no,
the nature of the appointment of the sort of person who would
be director of the prosecutorial authorities is such that, of
course, consultation would suffice, and could you, or should you,
put the consultation process into a more structured form which
would give voice to the reality of what happens and make that
the template? I think it is really quite an interesting debate,
because there are those who say that they are worried about the
independence if you have retained the power to direct in an individual
case, and this is actually the area where there has been most
resistance and toing and froing and difficulty.
Q64 Lord Lyell of Markyate: You know
where I stand.
Baroness Scotland of Asthal: Absolutely, and,
indeed, I know where Her Majesty's loyal opposition stand. They
stand firmly with the position as it now is.
Q65 Lord Lyell of Markyate: May I
just say, it does not matter where Her Majesty's loyal opposition
stand. You come from the tradition of independence that you have
inherited.
Baroness Scotland of Asthal: Absolutely, and
I have listened very, very carefully to what all the previous
Attorneys General have said of all complexions, and I have been
very grateful, for instance, that Lord Mayhew, yourself, Lord
Morris, all the attorneys of great distinction, have given me
the benefit of their help and assistance, for which I would like
formally to say a very heartfelt thank you.
Q66 Lord Morris of Aberavon: Thank
you very much for your last remark. I have submitted my reply
to your consultation. Leaving on one side the power to direct,
which has never been tested (it is a general power of superintendence),
when in practice that the DPP comes to you, two DPPs—Northern
Ireland and here—there is consultation, there is a meeting
of minds, but I have no recollection of actually taking a decision
to prosecute and, hence, I do not understand what you are giving
up. If the Prime Minister's comment is right, that the Attorney
General has herself decided, except if the law or national security
requires it, not to make key prosecution decisions in individual
criminal cases, since this does not happen in practice, not in
my time, not in Lord Mayhew's time, not in Lord Lyell's time,
as I understand it, what are you giving up? What does the sentence
mean?
Baroness Scotland of Asthal: I think it means
that there is the power; all the Attorneys General have the power
to direct. There was a great deal of anxiety around at the time,
I think, that an attorney may exercise that power, albeit that
attorneys had not exercised that power in the most recent past.
I think what the Prime Minister was doing was making it clear,
because there was concern being expressed that the Attorney had
this power to direct in individual cases, and I think there may
even have been a perception that the Attorney was directing prosecutions.
You will remember at the time people were making quite ill-informed
comments about what the Attorney was purportedly doing when he
was not. They were suggesting that the Attorney had made decisions
in BAE, had made decisions in these other cases, where the Attorney
certainly had not. So, I think what the Prime Minister was saying
is, if (which not admitted) you think she will, she will not,
whilst this process is going on, and I wanted to make it clear
that I had no intention to exercise that power to direct certainly
during the time this consultation period was on-going. I think
we are going back, are we not, to talk about the need to reassure,
to make clear and to deal with perception, and it may have been
an ill-informed perception, but there was a perception that the
Attorney and attorneys general in the past had been responsible
for directing in individual cases because they had power to direct.
Q67 Lord Morris of Aberavon: Given
what happens in individual cases, it is not such a big deal after
all, what you are supposed to be giving up? That is right?
Baroness Scotland of Asthal: I think some still
see that it is, because if you take Lord Lyell's point, he says
(and it has been strongly argued with me just the point that Lord
Lyell has made) that it is an inherent part of superintendence
and supervision that you retain the power to direct and that,
if you give up the power to direct, then the account which could
or may be taken of your consultation may not be as strong, and
that is one of the issues that many people have batted backwards
and forwards: because what you, Lord Morris, would really be doing
would be supplanting the power to direct with a power to consult,
which is what de facto happens. There is at the moment
no expression in relation to consultation but there is a power
retained which the attorneys, in their wisdom, have not sought
to exercise because they have not needed to.
Q68 Lord Lyell of Markyate: I agree
with what you have said, but there is an even bigger point that
we are a free society under the rule of law and a democracy in
which the Government of the day is responsible for a free and
fair and independent prosecution service. You as Attorney are
answerable for it. Therefore, are you to be bound by a decision
which in the end you could not control? It would be responsibility
without power, and that is, in my view, constitutionally deeply
objectionable and would undercut the responsibility of government
as a whole.
Baroness Scotland of Asthal: I think that is
a very powerful argument that has been put on one side of the
table, and we hear that. On the other side, it is said it is objectionable,
that a politician—because this is when the minister becomes
a politician—should have the right to direct who should
or should not be prosecuted. So there is a tension between those
two and I think it is a difficult issue. Constitutionally there
are those who say government should not have the power to do that;
they should have just the responsibility.
Q69 Lord Lyell of Markyate: Take
some highly charged thing: the DPP wants to prosecute a Cabinet
minister in relation to cash for questions or, the other day,
some unpopular person to the Government is prosecuted for something
that the DPP does not think it is fair to prosecute. Think of
the political storm, quite rightly enormous. We are a democracy.
In the end if you get something like that, should it not be decided
by the sheer weight of opinion? We know that in the Campbell case
the Labour Government was actually brought down by Patrick Hastings'
changing of his mind apparently under pressure. I think, historically,
that is a very complex case, but it could happen and it brings
it back to accountability to Parliament.
Baroness Scotland of Asthal: I think these are
powerful points on one side. It is perhaps not for me to make
the case for those who say the opposite, but I think we need to
listen to that voice. They are saying that this is an area which
should now be put clearly outside the political realm, that although
that is the position that happened in the past, now we could show
independence and it would be something quite significant. I think,
to answer Lord Morris's point about: "Will you not be giving
up something quite trifling?", if you listen to Lord Lyell,
you better understand the enormity of what we would be giving
up if we did give that up. It is a very interesting but very important
debate that is still going on and will be given a lot of consideration
when we come to consider the submissions that are made by everyone
in this regard.
Chairman: The Attorney General has been extremely
generous with her time and has other commitments. Your question
has been answered, has it?
Q70 Lord Rowlands: I have one subsidiary
question—you raised it earlier—about the question
of accountability. If we switched over to a system of non-political
Attorney General, have any of those who have been advocated come
up with a mechanism for accountability?
Baroness Scotland of Asthal: The short answer
to that is, no, save that, of course, there has been the suggestion
that there could be a select committee to which the person could
be held accountable. There are issues that we are ourselves considering.
For instance, should we have an annual report where we set out
all the things that the Attorney General's Office has done during
the year? I would quite like to do that anyway.
Q71 Lord Rowlands: That is rather
a poor substitute for actually being at the despatch box.
Baroness Scotland of Asthal: No-one has got
over the difficulty about there not being anyone accountable to
Parliament at the despatch box. You would not have that. You could
have a select committee, there are various other mechanisms people
have come up with, but what you will be giving up is there would
be no-one accountable, save and in except for if you made the
Ministry of Justice or the Home Office accountable for prosecutorial
authority. No-one seems to like that either, I know, but that
does not seem to hold. There are lots of people who have said
they think that is worse, but they have not come up with a solution
of somebody standing at the despatch box and being grilled to
within an inch of their lives. They have not come up with anything
better.
Q72 Baroness Quin: Until 1999 attorneys
were drawn from the House of Commons. Since then they have been
drawn from the House of Lords. Is this change really a recognition
that there are fewer senior lawyers in the commons than there
used to be or is it perhaps a reflection of the comment that apparently
our colleague, Lord Goodhart, has made, which is that it makes
a great deal of constitutional sense for the office of Attorney
General to be permanently in the House of Lords so that the Attorney
is not faced with the need to defend the seat in the Commons?
As I am asking this question, Chairman, I suddenly realise it
is predicated on no change to the composition of the House of
Lords, something which is in itself somewhat controversial, but
perhaps I could ask you to comment?
Baroness Scotland of Asthal: I am told that
the appointment of the Attorney has been on the basis of the best
person available for the job at the time, but I do not know whether
that is true. I think, as Lord Goodhart says, there are those
who strongly say that there are advantages in having the Attorney
in the House of Lords because of the fact that they will not have
to stand for an election and we have continuity and that gives
a degree of independence; there are others who bemoan and bewail
the fact that, because of the constitutional changes that have
happened in the House of Commons where you do not have what is
an opportunity to have a continuing and full-time practice and
be a full member of Parliament, they can no longer have that ability
to choose with such great facility in the Commons. That is an
issue that, I think, has given a lot of people concern, and, you
are right, there is an issue if the Lords become appointed: then
the Lord Goodhart point goes by the by because we will all be
appointed then. There is real agreement, however, that the Attorney
should still be a senior lawyer from whichever House, and there
are advantages in having a member in both Houses and having a
Solicitor General in one House and the Attorney in the other,
or vice versa. That is certainly seen as something of real advantage.
Chairman: Attorney General, can I thank you
on behalf of the Committee for your attendance and for your evidence.
It has been very much appreciated.
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