APPENDIX 3: WRITTEN EVIDENCE BY PROFESSOR JEFFREY
JOWELL QC
Approach to the issue
1. I shall in this paper argue that our Attorney
General (the Attorney) should no longer be a serving politician
and government minister (a 'political' attorney). I shall consider
the Attorney's role: (a) as legal adviser to the Government, and
(b) in respect of the superintendence of prosecutorial decisions.
The discussion will be set in the context of constitutional principle
(by which I mean those principles which are expected to guide
public decisions in a constitutional democracy).
Constitutional principle
2. Three principles are relevant to the Attorney's
role: First, is the fundamental tenet of public law that no person
should be a judge in his or her own cause. This principle
seeks to avoid conflict of interest by requiring certain public
decisions to be made by a decision-maker who is: (i) independent
of the executive, (ii) independent of the parties to the relevant
dispute, and (iii) impartial.
3. It is important to note that this principle is
not met only when the decision-maker is in fact independent
and impartial. The appearance of bias subverts public confidence
in the integrity of official decisions. The common law therefore
requires many official decisions not to give rise to a perception
of a "real possibility of bias" in the mind of a "reasonable
and fair-minded observer". Similarly, Article 6(1) of the
European Convention on Human Rights (incorporated in our law through
the Human Rights Act 1998) requires any decision affecting a person's
'civil rights and obligations' to be taken by a decision-maker
who is 'independent and impartial'—in appearance as well
as fact.
4. The question here is whether the Attorney's role
as a party politician and member of the Government (the 'political'
attorney) may give rise, in any or all of her various functions,
to an appearance of the real possibility of bias in the mind of
a "reasonable and fair-minded observer". If so, are
there other overriding reasons to exempt the Attorney from the
bias rule that applies to decision-makers at all levels in this
country?[63]
5. A second principle is the rule of law,
which requires that all laws are applied equally and without regard
to irrelevant or improper considerations.
6. A third principle is the separation of powers,
which requires aspects of the legal system to be free of political
direction.
7. These principles, where they appropriately apply,
should be presumed to be implemented by all public officials in
any constitutional democracy, in the absence of compelling argument
to the contrary.
A. Legal advice
8. Applying these principles to the issue of the
Attorney's role as the Government's legal adviser, it is clear
that where legal advice is proffered to the Government by a serving
politician who is also a member of that government, that advice
is vulnerable to being construed as influenced by partisan political
considerations. However 'semi-detached' from politics the Attorney
may claim to be, if he or she is a member of either House of Parliament
and takes the whip of the governing party, the role is clearly
'political'. Where the Attorney attends Cabinet regularly, the
appearance is that of an in-house lawyer who is also a member
of the Board.
9. In giving advice the Attorney does not
decide any person's 'civil rights or obligations' (under the requirement
Article 6(1) ECHR). After all, the Government is under no obligation
to follow that advice, and may indeed also seek further advice
elsewhere. This role may not therefore technically violate the
letter of Article 6(1) of the ECHR or the common law regarding
bias and conflict of interest. Nevertheless, as a recent case
points out, the appearance of bias has to be seen in the round.[64]
Therefore, when the Government does justify its actions on the
basis of the Attorney's advice there may be occasions when those
actions will be perceived to be based upon a partisan interpretation
of the law. This was seen in respect of the Attorney's advice
on the Iraq war where, however scrupulously impartial it was in
practice, his dual role gave rise to a widespread view that the
advice was tailored to political convenience.
10. The Attorney, in evidence to your Committee,
argues that where the public are under a misapprehension that
the Attorney was biased, that misapprehension ought not to be
fatal to the role of the attorney but should simply be countered
by argument and explanation. She believes (and other past Attorneys
agree in their submissions to the Consultation Exercise) that
the strong independent traditions of the Attorney are a sufficient
safeguard against biased decisions. With respect, the dual structure
of the Attorney's role inherently encourages these misapprehensions.
More importantly, the tradition of actual independence is not
the only point here. The appearance of lack of independence is
what matters. Justice must not only be done, but also seen to
be done. A tradition of actual independence was, similarly, pleaded
against the reform of the appointment of judges (then appointed
by the executive). In the end Parliament in its wisdom acknowledged
that the mere appearance of lack of judicial independence from
the executive necessitated a new scheme of appointments by the
independent Judicial Appointments Commission.[65]
The Attorney is not a judge, but there is no doubt that, however
independent and impartial she is in fact, her membership of the
government induces an appearance of partisanship which in some
situations will dent public confidence not only in the integrity
of the Attorney's advice, but also in the integrity, and indeed
legality, of the actions of the Government based upon that advice—thus
offending the constitutional principles set out above.
Is current political office a necessary qualification
for the Attorney?
11. The first justification of the present system
is that the advice from a 'political' attorney will be infused
with a necessary understanding of the wider policy context and
realities of government.
12. This argument contains different strands. It
is clearly unacceptable insofar as it suggests that the government
would prefer to seek a convenient legal opinion from someone sympathetic
to its policy goals.
13. A more acceptable strand of this argument assumes
that an 'independent' attorney will inevitably lack the necessarily
unique combination of legal and political knowledge that advice
to government requires. This argument is sometimes taken further
to suggest that, in reality, any ministers contemplating a challenge
to the rule of law (such as the recent proposal to exclude the
jurisdiction of the courts in asylum and immigration cases) is
more likely to accept advice to the contrary from an Attorney
who is a fellow-politician rather than an outsider.
14. It is of course important that the Attorney possess
the necessary combination of legal and political skills. However,
as was noted by Lord Rodgers of Quarry Bank, in a debate he initiated
in the House of Lords in 2005, the pool of qualified lawyers in
the House of Commons has significantly declined over the past
40 years.[66] A somewhat
larger pool is available for appointment to the House of Lords
(at least in its present state of reform). The discussion in your
Committee with the Attorney seemed to assume that an independent
Attorney would be drawn solely from the ranks of the career civil
service. There may well be well-qualified candidates in this group
however, account should be taken of the considerably wider pool
from which an independent Attorney could today be drawn. In recent
years there has been a significant increase in the number of lawyers
who are conversant with the political aspects of the kind of law
upon which the Government is likely to need advice. Following
the dramatic increase in judicial review, there is now a very
large cohort of barristers and solicitors specialising in public
law who are of the highest quality and sensitive to policy considerations.
There is little reason to believe that an independent attorney
drawn from this cohort would command any less authority with ministers
than a 'political' attorney. [See paragraph 25-26 below for further
consideration of the appointment of such an independent attorney].
Lawyer at the heart of government?
15. I have previously raised the question as to whether,
since the Constitutional Reform Act 2005 removed the need for
the Lord Chancellor to be a lawyer, the possible absence of a
lawyer at the heart of government justifies the retention of the
'political' attorney (while strengthening her duties to uphold
the rule of law and with a revised oath of office ensuring that
the Attorney act on behalf of the public[67]).
16. Experience in other countries with an independent
attorney indicates that there are attorneys who are more or less
independent of government, and attorneys who are more or less
persuasive. Their influence depends more on their personal status,
integrity and powers of persuasion than their membership of a
particular party or government.
17. However, there are strong reasons to suggest
that an independent attorney would be even better placed than
a 'political' attorney to monitor the rule of law at the heart
of government. First, being independent, there would be no inhibition
from attending Cabinet for the purpose of monitoring the legality
of decisions. Indeed, this would be an important part of the Attorney's
role under a specific statutory duty to uphold the rule of law.
Secondly, freed from competing political demands, she would have
more time for the systematic monitoring of the legality of decisions
as they emerged from the various centres of government (including
Departments and Cabinet Committees).
B. The Attorney's prosecutorial role
18. Since the recent BaE and loans for peerages sagas,
which demonstrated so graphically how the Attorney's involvement
in prosecutorial decisions can attract a perception of party-political
bias, it is difficult to see how the opportunity for reform of
the office could be declined. The principal argument against reform
lies in the fact that it is legitimate, in a decision to prosecute,
to take into account the "public interest". It
is argued that a member of the Government is best able to identify
the public interest.
19. It is important to stress, however, that the
notion of the public interest has important limits. First, it
is not synonymous with the interest of the ruling party in Parliament.
Secondly, it should not permit the Attorney unconstrained freedom
to take into account 'political' considerations that are wholly
unrelated to the purpose of the law under which the matter is
being prosecuted. For example, it is not clear that the Attorney
may properly take into account, in deciding to drop a prosecution
for corruption, the ground that a prosecution may antagonise a
foreign government and therefore lead to a loss of exports and
employment in the UK. Such a motive is, arguably, extraneous to
the objects and purpose of the law (domestic or international)
against corruption—and thus offends the rule of law.
20. Beyond those matters, however, there are a range
of issues that may legitimately be taken into account in a decision
whether or not to prosecute. These include matters of national
security; the fact that a conviction will create unwanted martyrs,
or lead to a national strike.[68]
In my view it is not necessary to have a 'political' Attorney
in order to identify or assess these kinds of matters. In countries
such as Ireland, an independent DPP has proved perfectly capable
of making these decisions. He consults in sensitive cases with
the Government (in a similar way to our Attorney's consultation
with ministers under the 'Shawcross Convention'), but the decision
is his alone, untainted by the perception of unacceptably partisan
bias.
21. Alternatively, since decisions on the public
interest are based upon considerations of policy rather than strict
legality, it would be constitutionally appropriate for them to
be acknowledged to be taken on the direction of the relevant Minister,
who would then be properly answerable to Parliament for the decision.
22. In addition to decisions about the public interest
in relation to individual prosecutions, the Attorney has a role
(sometimes in conjunction with other ministers, such as the Minister
of Justice or Home Secretary) in establishing general prosecutorial
policy. Such policy may, for example, require the concentration
of resources on the enforcement of certain crimes (such as gun
crime) and the corresponding reduction of concentration on others
(such as possession of cannabis). Such an operational decision
concerns the allocation of scarce resources—a matter traditionally
within the realm of the executive. Those kinds of decisions may
also appropriately be taken by the Minister of Justice or Home
Secretary (perhaps in consultation or in conjunction with the
Attorney).
23. Finally, mention should be made of the role of
the Attorney as 'arbiter' (in the words of the Attorney
in her evidence to your Committee) of the various prosecutorial
authorities. She comments on the value attached by members of
these authorities to direct access to the Attorney. With respect,
I believe that that aspect of her role, like the Attorney's role
in arbitrating on the legality of decisions taken by different
government Departments (discussed in para. 17 above), could adequately
be performed by an independent Attorney, as is done in other countries.
24. I am not therefore persuaded that the political
status of the Attorney justifies the appearance of bias in the
area of prosecutorial decisions. Individual prosecutorial decisions
are in any event routinely left to the Director of Public Prosecutions
or others and the power of direction is rarely, if ever, exercised.
A properly qualified independent Attorney should be capable of
performing a number of the superintendent roles without any loss
to the efficacy of the Attorney's functions.
The appointment of a non-political Attorney
25. How should an independent Attorney be appointed?
Practice in other countries differs. Some appoint their Attorneys
for a term of years. This means that the Attorney's appointment
could straddle more than one government. Others appoint the Attorney
for the term of the government only. In either case, the appointment
is normally made by the equivalent of the Prime Minister, perhaps
after consultation with the leader of opposition parties (or,
in the USA, with the advice and consent of the Senate). Council
of Europe countries are increasingly considering the appointment
of their Attorneys by the equivalent of our Judicial Services
Commission.
26. If our Attorney were not to be a member of either
House of Parliament, but appointed by the Prime Minister for the
duration of the term of the government, then some of the 'political'
qualities of the existing office would be retained, yet free of
the obvious appearance of bias that a fully political attorney
inevitably attracts. A requirement of consultation with the opposition
on the appointment would affirm that the Attorney's role in defining
the 'public interest', in decisions about prosecution at least,
is not confined to determining the interest of the government
of the day.
Accountability to Parliament
27. Is the 'political' role of the Attorney justified
by the fact that her decisions are subject to scrutiny by Parliament?
28. In respect of the Attorney's role of legal advice,
this justification carries little weight. Put simply, where the
Government acts upon legal advice, it is its actions that
may be appropriately challenged by Parliament and not the advice
upon which the actions are based. The appropriate forum for testing
the legality of the matter is the courts. Thus if the Attorney
advises that it is legal to impose sanctions upon country K, and
the Government then decides so to do, it is not within the competence
of Parliament to challenge the substance of the Attorney's advice
on that matter (which in any event is normally kept confidential).
29. Similarly, some decisions in the area of the
Attorney's prosecutorial powers are not ideally amenable to substantive
Parliamentary scrutiny—such as the decision not to prosecute
on the ground of lack of sufficient evidence (as has been seen
in relation to the decision not to prosecute the loans for peerages
allegations).
30. However, in respect of other prosecutorial decisions
(such as some decisions not to prosecute on the grounds of 'public
interest', and matters of operational policy) direct responsibility
could properly be taken by the relevant Minister, who would then
be answerable to Parliament for the decision.
31. There are also other forms of accountability
which could be developed for an independent attorney. These include
the requirement of an Annual Report and regular attendance at
a designated Parliamentary Select Committee.
63 The common law and Art.6(I) of the ECHR generally
exempts decisions involving 'policy' or 'expediency'. See Woolf,
Jowell and le Sueur, de Smith's Judicial Review, ch.10
(2007). Back
64
See R (on the application of Brooke et al) v. The Parole Board,
The Lord Chancellor and Secretary of State for Justice [2007]
EWCH 2036 (Admin), where it was held that the Parole Board's various
connections with the Department of Justice presented an appearance
of bias. Although few of those connections would on their own
have been regarded as biased, they cumulatively created the impression
of lack of structural independence. Back
65
Under the Constitutional Reform Act 2005. Back
66
Lord Rodgers calculated that the number of barristers in the House
of Commons had fallen by two thirds (from 100 to 34) between 1964
and 2005. HL Deb. 15 Dec.2005. Back
67
Jeffrey Jowell, Politics and the Law: Constitutional Balance
or Institutional Confusion? JUSTICE/Tom Sargent Lecture, 17
October 2006, published in JUSTICE Journal, Nov.2006 p.18, at
p. 28. Back
68
An example given by Lord Wilberforce in Attorney General
v. Gouriet [1978] A.C.435. Back
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