14 May 2008
The Rule of Law at The Heart of Government
By: Baroness Scotland— 2007-2008
It is sometimes said that the role of the Attorney General is where law and politics meet. Law and politics met also in Sir Thomas More – along with something else of course, that is, faith. Although I share his faith, the precedent is not an altogether comfortable one. Thomas More held the office of Lord Chancellor, rather than that of Attorney General, and in fact was ultimately betrayed by Sir Richard Rich, who was rewarded by Thomas Cromwell with the office of Attorney General for Wales. In his play A Man for All Seasons Robert Bolt has Thomas More say this to Richard Rich: ‘“It profiteth a man nothing to sell his soul for the world”, but for Wales, Rich, for Wales!’. Well I am Attorney General for England and Wales, so it would not be right for me to be dismissive of the Principality. In fact, I am also, separately, Attorney General for Northern Ireland. My responsibilities do not extend to Scotland, although my name is Scotland!
I hope not to share Thomas More’s unhappy fate despite the fact that some people have been, in effect, arguing for decapitation of the Attorney General’s role in the course of a review we have been carrying out, and to which I shall return later.
There have been relatively few Catholic Attorneys General. In recent times probably the most distinguished has been Lord Rawlinson of Ewell – Peter Rawlinson as was – who served as Solicitor General and later Attorney General at various times in the 1960s and 1970s, and, sadly, died in June 2006. Rawlinson indeed found time in his busy and turbulent career to write a biography of Thomas More entitled Public Duty and Personal Faith – along with a number of successful legal thrillers. It was expected in some quarters that Rawlinson might become the first Catholic Lord Chancellor since Thomas More, the law having been changed to permit that possibility in 1974. In fact that office went to Lord Hailsham. Rawlinson’s obituary in The Independent commented that he ‘was always conscious of his constitutional responsibilities as a Law Officer of the Crown and would never have placed the interests of party before the administration of the rule of law’.
That encapsulates the approach which successive Law Officers have taken to their role, and it brings me to my theme for this session, that is, The rule of law at the heart of Government.
Why is the rule of law important at all? To answer that, I think, we must first try to define what we mean by the rule of law. Many have tried, some with more success than others. In the sixth Sir David Williams Lecture to the Centre for Public Law in November 2006, Lord Bingham of Cornhill, the current senior Law Lord, surveyed a range of possible meanings for the concept, ranging from ‘the name commonly given to the state of affairs in which a legal system is legally in good shape’, to nothing more than ‘Hooray for our side!’. Lord Bingham suggested that:
the core of the existing principle is…that all persons and authorities within the State, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.
But Lord Bingham acknowledged that even this proposition could not be applied without exception or qualification. He went on to identify eight sub-rules into which he thought the principle of ‘the rule of law’ could be divided. He commented that there was ‘regrettably little to startle in any of them’. But it is worth recalling those eight sub-rules because they provide a useful basis for discussion. They are:
- First, that the law should be accessible and, so far as possible, intelligible, clear and predictable.
- Second, that questions of legal right and liability should ordinarily be resolved by application of the law and not the exercise of discretion; but that where a discretion is conferred, it should ordinarily be narrowly defined and its exercise capable of reasoned justification.
- Third, that laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
- Fourth, that the law should afford adequate protection of fundamental human rights.
- Fifth, that means must be provided for resolving, without prohibitive cost or inordinate delay, bona fide civil disputes which the parties themselves are unable to resolve.
- Sixth – which Lord Bingham referred to as the core of the rule of law principle – that ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purposes for which the powers were conferred and without exceeding their limits.
- Seventh, that adjudicative procedures provided by the State should be fair.
- And eighth, that the existing principle of the rule of law requires compliance by the State with its obligations in international law.
In summarising Lord Bingham’s analysis in this way, I do not by any means do justice to its subtlety, or to the subtlety of the topic. ‘The rule of law’ can mean very different things to different people, and in different contexts. One need only look at the recent judgement of the Divisional Court in the Corner House case, striking down the decision of the Director of the Serious Fraud Office (SFO) to halt the investigation into BAE Systems and arms deals with Saudi Arabia, to see that.
In that judgement, the Divisional Court observed that, ‘[a]t the heart of the obligations of the courts and of the judges lies the duty to protect the rule of law’.
It is impossible to disagree with that proposition. But what did it mean in the context of that case?
Counsel for the SFO had argued that:
in the context of the Director’s decision, the rule of law requires no more than he should act in a manner consistent with the well-recognised standards which the courts impose by way of judicial review.
But the court went further, holding that:
The courts protect the rule of law by upholding the principle that when making decisions in the exercise of his statutory power an independent prosecutor is not entitled to surrender to the threat of a third party, even where that third party is a foreign state. The courts are entitled to exercise their own judgement as to how best they may protect the rule of law, even in cases where it is threatened from abroad. In the exercise of that judgement we are of the view that a resolute refusal to buckle to such a threat is the only way the law can resist.
That is a highly specific articulation of the principle of the rule of law, as it applies to a particular kind of decision by a prosecutor, in particular circumstances. It amounts to the court saying that it is best placed to determine what the rule of law requires in such circumstances. The judgement thus raises important issues about the respective roles of the independent prosecutor, the courts and the executive. The SFO Director has now been given leave to appeal to the House of Lords, so this may not be the final answer on these issues and I shall not speculate about the eventual outcome now.
But the issues exposed by the Corner House are highly relevant to the theme of this talk, which is the rule of law at the heart of government. I say that because part of my theme is that the maintenance of the rule of law is not the exclusive preserve of the courts. It is a responsibility shared with Government Ministers, independent prosecutors and other officials who exercise executive power. My role as Attorney General is pivotal to this because it is, as I have said, where the law and politics meet.
As I have also said, the Government has recently been reviewing the role of the Attorney General and we undertook a wide-ranging public consultation in the second half of last year. I have been clear throughout this process that the purpose of reviewing the Attorney’s role should be to increase public trust and confidence in the role, to enhance the rule of law and the administration of justice. We desired, and would welcome, change wherever that change would augment those interests. In the proposals which the government set out in March of this year in the White Paper and draft Bill on Constitutional Renewal, I believe we have developed a significant but balanced package of reforms which achieve those aims.
In particular it is important to appreciate what we are not changing. In the first place, despite what the ‘decapitators’ might have wanted, there will continue to be an Attorney General who will be both a senior lawyer and a senior Government Minister. Thus my role as guardian of the rule of law at the heart of Government is retained. Similarly there is no change to my role as the Government’s chief legal adviser, or to most of the functions which the Attorney General exercises independently in the public interest – for example, to protect the interests of charities; to ensure that the fairness of court proceedings is not prejudiced by enforcing the law on contempt of court; and by referring unduly lenient sentences to the Court of Appeal.
At the same time, under the Government’s proposals the Attorney General will remain the Minister responsible for superintending the main prosecuting authorities in England and Wales. However, we are proposing some significant changes to that relationship of superintendence, and a diminution in the Attorney’s role in the taking of individual prosecution decisions.
What does this all mean for my role in relation to the rule of law at the heart of Government? That role manifests itself in a number of ways, many of which will not change, as I have explained.
The first is my role as the chief legal adviser to the Crown – in the wider sense, i.e., to the Government and, on some issues, Parliament and the Queen. In this role I sit at the apex of a structure which provides legal services and support across the whole range of the Government’s functions. It includes the Treasury Solicitor and about two-thousand members of the Government Legal Service who advise individual Ministries, draft legislation and conduct civil and criminal litigation on behalf of the Crown. Of course only a tiny proportion of the legal issues which confront Government are referred to me personally. But these tend to be those issues which are most sensitive, complex or controversial. The Attorney General may also be consulted where two or more Departments disagree on a point of law. The Attorney will be the final arbiter as to what the legal position promoted and adhered to by the government is going to be.
As Attorney General I also exercise oversight of the conduct of Government litigation in both domestic and international courts, and appoint panels of counsel to represent the Crown.
This legal machinery, with the Attorney General at its head, is a reflection of the the real importance attached to the rule of law. It means that Government proposals, policies and decisions are routinely vetted and validated against our domestic and international obligations – whether by departmental legal advisers, external counsel or, where appropriate, the Law Officers.
My function in this respect goes beyond merely responding to requests for legal advice. For example, the Attorney General has an important role in the process of preparing legislation. The Solicitor General or I sit on the Cabinet Committee which considers all Government Bills. This role has been given added force by the requirement in section 19 of the Human Rights Act 1998 for the Minister in charge of a Bill to make a statement to Parliament as to its compatibility with the European Convention on Human Rights (ECHR). The obligation to respect the Convention rights of course already existed before the Human Rights Act. But the Act, including the section 19 requirement, has no doubt given added focus and intensity to the way in which human rights questions are addressed. The Solicitor General or I scrutinise the ECHR memorandum which the responsible department produces on each Bill, setting out the human rights analysis and explaining why, in relation to any relevant provision, the ECHR position is thought to fall on the right side of the line. We will probe any areas of doubt or concern. If there is a serious problem, a provision may be amended or even dropped.
Moreover the Law Officers consider the legal and constitutional propriety of all Government Bills, including the scope of powers to make subordinate legislation and proposals to include retrospective provisions or bring legislation into force early. Parliamentary Counsel – the professional drafters who prepare all Government Bills – can and do raise direct with the Law Officers any concerns they may have about the legality or propriety of the legislation they are being asked to draft.
Much of this work of necessity happens behind the scenes. Legal advice given to the Government, like anyone else, is privileged and confidential. This is to ensure that Government departments and their lawyers can be completely frank with one another and, indeed, that clients are not deterred from seeking legal advice at all for fear that their legal problems may become public. In particular there is a strong rule that advice given by the Law Officers is not generally disclosed outside Government – nor is the fact of whether or not they have advised on a particular issue. It is neither accepted nor denied; nobody says anything about it at all.
This is an important illustration of my point that responsibility for protecting the rule of law does not rest with the courts alone, but is shared with all of us who are involved in taking, or advising on, decisions about public policy or the exercise of power. It is of course quite usual for decisions of the Government to be challenged in the courts, and there are well-developed principles by which such decisions are tested by the courts against the rule of law – the sixth of Lord Bingham’s eight ‘sub-rules’ (though others are relevant here, too). But, day by day, hundreds of decisions are taken within Government which will never realistically come before the courts. In those cases, it is the Law Officers and the members of the Government Legal Service who are the ultimate guardians of the rule of law, the upholders of Lord Bingham’s sixth sub-rule, and thus represent an important constitutional safeguard. In particular the public do not get to know about the occasions when the Law Officers or Government lawyers have counselled against a proposed course, or have advised that a provision should be changed, in order to comply with our legal obligations and the rule of law. Lawyers to Government are there to tell their clients what they need to know, and not always what they want to hear. This is a very important distinction.
My functions in relation to criminal prosecutions are similarly important in upholding the rule of law. As Attorney General I have statutory responsibility for superintending the main prosecuting authorities in England and Wales – the Crown Prosecution Service, the Serious Fraud Office, and the Revenue and Customs Prosecutions Office. In a similar way, as Attorney General for Northern Ireland I superintend the Public Prosecution Service in Northern Ireland.
I am not of course personally involved in every prosecution decision which those authorities take. But in practice my superintendence function encompasses broadly: answering for the prosecuting authorities in Parliament; responsibility for the overall policies of those authorities, including prosecution policy in general; responsibility for the overall effective and efficient administration of those authorities, including matters of resources; and a right to be consulted and informed about difficult, sensitive and high-profile cases.
The Attorney General also exercises non-statutory superintendence over the armed services prosecuting authorities. Importantly, those authorities are operationally independent of the Ministry of Defence and the military chain of command. It is their superintendence by the Attorney General that secures this independence and thus satisfies the fair trial requirements of the European Convention on Human Rights. In that capacity the Attorney is consulted about important cases and answers for decisions of the prosecutors in Parliament.
In a similar way, as Attorney General I have general oversight of the Government prosecutors whom I do not formally superintend under statute. These include the prosecuting teams in the Department for Business, Enterprise and Regulatory Reform, the Health and Safety Executive and the Department for Work and Pensions.
Thus the Attorney General has wide responsibilities for the prosecution service as a whole in England and Wales, as well as Northern Ireland. This enables the Attorney to provide leadership for the system, take the widest view of prosecution policy and help ensure co-ordination and consistency of approach as between the different prosecuting authorities. It also means that, as one of the three Government Ministers responsible for criminal justice policy (with the Home Secretary and the Justice Secretary), I am able to ensure that the important role of the prosecutors is taken into account in the development and implementation of criminal justice policy.
I regard the prosecutorial role as integral to my function of upholding the rule of law. One of my key tasks must be to ensure that the criminal law is enforced fairly and effectively. In particular, it is a vital tool in combating the threat of terrorism which represents an attack on the values which we hold most sacred, including the rule of law itself.
Under the Government’s proposed reforms I will play less of a direct role in the taking of decisions in individual prosecution decisions. This will help to underline the independence of such decisions. At the same time the reforms recognise the need to retain some form of governmental oversight of the prosecution service, and the desirability of that continuing to be exercised by the Attorney General. Thus my overall superintendence role will remain – we think the proposals we are making will make it clearer how that is exercised – and will indeed be in some respects tightened up.
Finally, I have referred to some of my ‘public interest’ functions, such as those in relation to charities and contempt of court. In exercising these public interest functions, the Attorney General acts independently of Government, and may consult Ministerial colleagues but does not act at their direction. Again what all these functions have in common is that they carry a responsibility to safeguard the public interest; to uphold the rule of law; and to act independently of purely political or party interests.
I close by mentioning one proposal which attracted almost unqualified support during our consultation. This concerns the Attorney General’s oath of office and relates to the central theme of this paper – my role in relation to the rule of law. Under the existing oath the Attorney General swears that he or – and I can now say, after seven hundred years – she will:
duly and truly minister The Queen’s matters and sue The Queen’s process after the course of the Law, and after my cunning…I will duly in convenient time speed such matters as any person shall have to do in the Law against The Queen as I may lawfully do, without long delay, tracting or tarrying the Party of his lawful process in that that to me belongeth. And I will be attendant to The Queen’s matters when I shall be called thereto.
While this wording has a certain antique charm, it does not truly encapsulate the modern-day responsibilities of the Attorney General. I have been asked on several occasions since taking my oath whether I have found my cunning, identified my cunning and how I intend to use my cunning in accordance to my oath! In particular, there was a strong view that the oath should be amended to make specific reference to the role of the office in relation to the rule of law, perhaps along the lines of the oath the Lord Chancellor is now required to swear, to respect the rule of law. It is, as my remarks today have explained, the principle which runs through all my responsibilities, and which any changes we make must safeguard, not undermine.
* * *
How many of you knew about the role of the Attorney General before you listened to this paper? [Hands raised.] I can tell you that is more than usual! I should also just like to say that I, too, thought I really understood everything that the Attorney General did. I have been in Government since 1997, and have been a Minister since 1999. I spent two years in the Foreign Office, two years working at the Lord Chancellor’s Department, then four glorious years as Minister of State responsible for criminal justice. At one stage, after I had seen a few bills through Parliament, I was asked by Her Majesty’s loyal opposition, ‘Patricia, has your Government any other ministers?’. To which I replied, ‘No, just me!’.
Having had the privilege of working quite closely with three Attorneys General, I really thought I understood what an Attorney General did. As Minister for criminal justice, I had access to much of the substance of what I thought the Attorney General did. I now realise that my respect for every Attorney General I have ever encountered is not sufficiently high. It was said by Francis Bacon that being Attorney General was ‘the painfullest task in the realm’. I assure you nothing has changed! Another of my predecessors said that to be an Attorney General is to be in hell.
Yet it is a most extraordinary job and the consultation we have gone through has been really enlightening because many – and I do not exclude myself – thought reforming this role would be far easier than it has proved to be. One of the reasons it has grown organically to accrue to itself new responsibilities is precisely because of responding to need. As we come to reform and unpick all this, it is a real challenge to preserve all that is good, which upholds the rule of law, which makes for transparency, which delivers real integrity to the people of our country. It is a real challenge to discover how to perform the role better than it has been done until now. We hope that the reforms we propose will assist us greatly.
The role can be an incredibly lonely one, because some of the matters with which an Attorney General deals, are seen by very few other people. The difficulty of being the only person who knows certain things is that you are the only person who knows. The responsibility of taking decisions can be not only very burdensome but also very lonely. So, as I say, my respect for every Attorney that has gone before me has grown enormously while in office.
One interesting and curious point that has been raised by others is that the first-ever review of the Attorney General’s seven-hundred-year-old role has been undertaken only after the sole woman to have held it was appointed!
Discussant: Mr. Khawar Qureshi, Q.C.: It is a great pleasure and honour to appear here to try to develop some of the issues the Attorney has just identified. Given that there are a reasonable number of lawyers present, there may be little to be gained by going through the intricacies of the Constitutional Renewal Bill, part 3 of which identifies substantive reforms the Government intends to effect in the role of the Attorney General. What I would invite anybody interested in the role of the Attorney General to do is to look at the 2007 consultation paper which identifies forty-two functions exercised by the Attorney General. It is a very long list, of which I have had some experience as a Treasury Counsel – one of those barristers appointed to a panel by the Attorney General to advise and represent Government ministries and departments – although not under the present Attorney here present, since I took silk (as a Q.C.) in 2006 before her appointment.
The experience certainly confirmed for me the very onerous responsibility an Attorney must assume. The task is both very difficult and thankless. It is perhaps no coincidence that the current reconsideration of the role of the Attorney General essentially reflects the manner in which society has become much more concerned with good governance, accountability and transparency.
Two pivotal points for crystalisation of this discussion are, first, the debate concerning the legality of intervention in Iraq and the advice that was given on that; and, second, the advice given and action taken at the end of 2005 to discontinue criminal investigation into British Aerospace. These concern two of the three primary functions of the Attorney: giving legal advice to the Crown, and supervising various Government services such as the Serious Fraud Office and the Crown Prosecution Service. The third is, of course, guardianship of the public interest.
The reform now proposed focuses essentially on the supervisory role of the Attorney. See sections 11 and 12 of the Constitutional Renewal Bill dealing with the Attorney’s role essentially in the criminal context. Section 11 seeks to abolish the ability of the Attorney General to enter what is called a noli prosequi to discontinue criminal proceedings. Section 12 seeks to curtail the ability of the Attorney to direct responsible officers in the Crown Prosecution Service and the Serious Fraud Office in specific cases, requiring there to be a protocol in accordance with which the Attorney General and the departments in question must operate.
That is not very dissimilar from what took place in 2003 when the role of the Lord Chancellor was changed. The Chancellor had to enter into what is called a ‘concordat’ or agreement with the Lord Chief Justice as to how the relationship between the judiciary and the Lord Chancellor was to be conducted under the new regime brought into effect by the Constitutional Reform Act. At the same time the Attorney General still has a role in directing that prosecutions be discontinued if the national security is at issue. You will recall that in the BAe matter this was precisely the question with which the Divisional Court was required to grapple.
The Attorney’s legal advice to the Crown is embraced by privilege. But no less a person than Lord Bingham has said that there may exist circumstances in which it is not quite accurate to describe the relationship between the Attorney and the Government as that between a lawyer and a client, for an issue such as that of going to war involves and engages a wider dimension: namely the general public and perhaps more specifically those individuals who are likely to have to expose themselves to risk of serious physical harm or death. Lord Bingham, then, has suggested that in particular contexts reliance upon privilege is possibly too restrictive an approach to adopt, and that then perhaps advice ought to be shared more widely. Issues for debate here include whether the advice should be shared more widely with Parliament or with a specific parliamentary select committee.
There was a time – one that I certainly do not recall personally but about which I have been told – when incumbents might engage also in private practice and were in effect part-time Attorneys General. There is no question of the present Attorney being part-time, for she is likely to found at Buckingham Gate or in Parliament until the early hours of the morning. For this I can offer personal testimony.
It is an extremely difficult role, and there are advocates of detaching the Attorneyship from Parliament and Government on the grounds that a minister cannot give impartial and independent advice. We ought perhaps, however, to consider that the Attorney advises not only in the abstract sense. Advice is, in fact, given on issues that are likely to have a very significant policy dimension wherein ultimately there must be accountability. Putting it another way, were it not for the facts that the Attorney advised the executive and that this advice has been debated in Parliament, we should not be where we are in regard of discussion of the Attorney’s role. If, as has been suggested, a private individual – a senior lawyer from private practice – were hired for a specific term like the heads of the Serious Fraud Office and the Crown Prosecution Service, would there be so much accountability? Personally I think not, but plainly the proponents of detachment take a different view on this.
The debate about intervention in Iraq has provided us with a very timely reminder as to constraints upon the executive. If the rule of law is at the heart of Government, there are some who might suggest that the Attorney General is the Government’s conscience – in maintenance of the rule of law. It is only right that the executive always bear in mind the requirements of the rule of law. In the late 1980s and early 1990s there was circulating in Government ministries and departments a publication bearing the title, The Judge over your Shoulder. This reminded decision-makers that the propriety of any decision was ultimately susceptible of determination before the courts. I certainly hold the view that the decision-maker first and foremost has a duty to respect, protect and adhere to the requirements of the rule of law. There are others who say that this entails not necessarily a positive obligation, but rather a requirement in the negative, such that it functions as a constraint.
Ultimately if the rule of law is to be upheld, this must be performed by an adjudicatory function, which function is based in the courts. The only entity of the State capable of determining and declaring whether or not the rule of law has been upheld is the courts, and it can never be otherwise. Everyone else has a job with the responsibility to observe, to respect, and to obtain it, but it is the courts that have a duty to uphold it and to declare that it has been upheld. If we live in a society where the executive always acts in accordance with its responsibility in pursuit of the rule of law, there will be very few occasions when its decisions are found wanting as against requirements of the rule of law. We are fortunate to live in circumstances where the executive operates on such a basis. There are other societies where unfortunately this is not the case. I repeat that it is down to the judges, and the judges alone, to ensure that there is no tyranny by the executive.
The rule of law at the heart of Government is, from my personal experience, of vital import, but it is equally vital for all of us to remember that it is the judges who in the end must determine or decide, declare or adjudicate, whether or not the requirements have been upheld. The Government has embarked upon a very difficult project in constitutional renewal. Whether critics will be satisfied by the approach proposed, namely curtailing of the role of the Attorney in prosecutorial decision-making and exercise of discretion remains to be seen. If nothing else, the BAe issue and debate about advice given over intervention in Iraq have provided us all with a timely and important reminder as to the scope of the Attorney General’s role and as to the very heavy responsibilities the Attorney bears.
Russell Wilcox: Am I right in thinking that there is a point of at least potential disagreement between the Attorney General and Mr. Qureshi? Mr. Qureshi said that ultimately the rule of law, the upholding the rule of law, is the responsibility of the judiciary. It would appear that for him the fact that the ultimate adjudicatory authority is the judiciary is actually constitutive of the rule of law. The Attorney General, meanwhile, seems to think that a division of labour, as between different branches of Government, is itself part of the rule of law. Consequently, for her, I assume, one branch, possibly even the courts, might violate the rule of law substantively conceived in not respecting its particular role within a balance of powers. Is there disagreement here?
Baroness Scotland: There may be disagreement to an extent: over the notion that the judges or the court is the only arbiter of the rule of law. This might suggest that no other entity or agency had any responsibility.
Now it is certainly right that final arbitration or interpretation of the rule of law will be undertaken by the courts, ultimately by the House of Lords. But it is also true that Parliament remains sovereign and therefore the role of the courts is to interpret law created through the democratic process in Parliament where the will of the people has been expressed.
It is a question of balance, but I think you are right to identify a nuance of difference here. In order that proportionality and balance be best understood, each leg of the three-legged stool must play its own part. If one element is out of alignment with the other two, there will be an unbalanced stool and people may fall off and injure themselves.
Russell Wilcox: Does it follow then that, even with our increasingly activist judiciary, it will in fact be impossible for judges to find that Parliament has substantively breached the rule of law?
Baroness Scotland: No, because no one is saying that every Government will get absolutely everything right on every day. Consider control orders. It is open to the courts to declare that the balance arrived at by Government is not the right one. That does not mean the Government is bound, but it does have a choice: either to accept such a pronouncement and interpretation, or to reject it. The Human Rights Act provides for that, and the Government has chosen to accept it.
By the same token, concern has been expressed that if the executive, Parliament or Government, were to become de-politicised and its role taken on by another entity, there might be a call for that entity to be duly elected, duly proven, in order to restore the balance. The constitutional alignment to which we have held for centuries has been one in which governments are politically elected, while judges are independently and objectively appointed, without political bias. The functions are separate and distinct, and I think that has long worked to our advantage.
There has always, of course, existed some tension. It is really quite wonderful that we should think that we invented this. If you look back through history, tensions between courts and executive have almost always existed. Some of these issues are never going to be easy to resolve, whoever takes the decision. Perhaps we ought to accept that perfect alignment is never going to be achievable, even if we should still maintain it always as an aspiration.
Domenic Pini: In respect of the advice that you give to Government particularly when it relates to international law, as in the case of Lord Goldsmith over invasion of Iraq, what if a situation arises in which your opinion that a particular course of action is illegal were not taken? Where would that leave you as protector of the rule of law?
Baroness Scotland: First, one hopes with some reason that an Attorney will never be placed in that invidious position. The Ministerial Code provides that where an issue pertains to law and there is some difficulty, the Attorney should be asked to opine on it. The problem has never, I believe, been one of Government disregarding an Attorney’s opinion as to illegality.
There exists, however, a very different issue. We lawyers often tell clients that while a particular course of action may not be unlawful we find it nonetheless ill-advised. This is a far more difficult situation than one of an opinion as to illegality which would be binding in order to stay within the rule of law. The Attorney General may inhibit doing that which is unlawful, but cannot prevent even a collective action that some might consider ill-advised.
That is a very important distinction to make, and too many people like to conflate the two. There is a bit of intellectual dishonesty in which people would like lawyers – and not just Government lawyers – to engage. They labour under the misconception that a lawyer’s role is to tell you what you want to hear or what the lawyer would like you to do. So if one is intellectually dishonest one determines first the conclusion to which one would like the clients to come, and then constructs a legal argument to drive them in that direction and that direction only. A lawyer’s real role in all honesty is to make a clear and objective analysis of what the law is, explaining and exploring that to the best of one’s abilities. If one believes the conclusion that legal analysis reaches will not be to the clients’ long term benefit, and there are other reasons why the client may be minded not to do it, one has a responsibility also to argue for that.
If the client is a billionaire and, having taken into account everything one has said, still wishes to spend £50,000,000 on litigation that will bring in to the lawyer £50,000, it is one’s delight and privilege to ask him to sign one’s brief! That is reality. We must be very clear as to what a lawyer’s job is. I find it hard that many people whom I respect actually want us to be intellectually dishonest. One has to be rigorous and clear as to what the law says even when one does not like it. It takes real integrity to tell a client of a tool that might be used to do something one does not want to see done, but that is part of the job.
If one does not like the consequences of collective responsibility, there are always options. Look back through history. It is always difficult for a Government to disregard the advice of an Attorney General because it might lose its Attorney General – and that is something no government wants to face!
Eniola Leyimu: Crudely put, the constitutional reforms which are being put forward might be seen as creating more of a separation of powers by giving the judiciary more independence. How do you reconcile this with your advising the Government when it might be encroaching on the rule of law? With the BAe case, for example, how can you advise the Government and still be seen as doing justice according to the rule of law?
Baroness Scotland: You refer to my independent exercise? First, I must clear up any misconception that may have arisen. The decision in BAe was not taken by the Attorney but rather by the Director of the Serious Fraud Office. The question was whether in making a Director’s decision he did or did not take properly into account what was in the public and national interest.
There are clear ways in which the differing functions of an Attorney have to operate. In exercise of the Attorney’s function as superintendent and supervisor of prosecutions, decisions are taken wholly independently from the Government of the day. The reason that is of real importance is that the exercise of prosecutorial judgement is in a pretty pure sense that of a lawyer. Every lawyer who has held the post of Attorney has been a serious practitioner in the profession for a long time. None of the skills, responsibilities and training that one has as a lawyer, disappear. I do not know how it is with the other lawyers here, but it is in my soul. If you take away the outside, it is very sad that what you have left is a lawyer underneath! I cannot divorce myself from thirty years of being enmeshed and immersed in the law.
It was a question that was put very clearly in the consultation because some people were saying that we should not have a ‘triple-hatter’; that if you are a member of the Government then a fortiori your judgement as a lawyer must thereby be clouded and influenced. That is actually a very odd thing for a lawyer to hear because we are constantly advising clients, as any of you who have had a professional career will know, on issues which are out of kilter with what you may want them to do politically. When it comes to it, that operation is one you exercise as an independent lawyer.
As has been so ably said, the Attorney does not have to do any of this entirely on his or her own. We have Treasury Counsel. When there are matters arising of real complexity people from the self-employed and independent bars are usually called in to help determine what it is best to do. The idea that one cannot perform the three functions has been mooted because some have argued strongly that there is a perception out there that one’s judgement will be clouded. I think it was Lord Lloyd of Berwick who said that a perception is a poor test upon which to found reform if that perception is fundamentally flawed.
The law officers have, if you like, kept the feet of the government of the day to the fire when it comes to the rule of law and propriety. We asked if there was evidence in fact of impropriety ever having happened. No one has suggested that it did, but some have spoken of a perception, and such a perception is obviously very important.
Dr. Andrew Hegarty: I should like to offer Khawar Qureshi the chance to come in here if there is anything in the recent questions and discussion to which he may wish to respond.
Mr. Khawar Qureshi, Q.C.: As the Attorney has mentioned, the role has been occupied in its present form for centuries. It is only in very recent years that involvement of the Attorney General in the decision to discontinue investigation into BAe Systems and the legality of the Iraq intervention has been queried, but the overall context is one in which the public’s perception of government requires addressing. The consultation paper refers to trust to ensure that it is at the forefront, as indeed does the Constitutional Reform Act. Plainly, the executive has realised that if there is an issue of perception, it is linked to trust: a diminution of it, a lack of it or the need to enhance it in order to bring it up to a certain standard.
It is all-too-easy for the non-lawyer to look on and say, ‘Well, actually it is just because you have one person performing three functions’. There are people like myself who believe that the Constitutional Reform Act’s severance of the formal link between the Lord Chancellor and the judiciary is not necessarily a good thing. Excessive formalism diminishes that which ultimately should be the bedrock of the relationship between the executive, legislature and judiciary: trust. We can legislate ad nauseam but unless the three arms of the State trust each other, we shall have nothing but intestinal warfare – not a healthy state of affairs to contemplate, or for which to legislate.
Baroness Scotland: I think what has been said about trust is absolutely at the heart of this. When we went into the consultation I was personally very clear that if radical reform was needed then that is what we were going to undertake. If at the end of this period I had come to the conclusion that the construct we have now was unsound, that we could make the office more open, transparent and fitted to the twenty-first century by reconstructing it in a fairly fundamental way, I would have had no hesitation in pursuing that. We had a once-in-a-generation opportunity to reform the role so that it might be the best we could make it. That was the only criterion considered. I came, in fact, to understand that the real reason why people lacked trust was a failure to understand what on earth the Attorney did. Notoriety had come because of the two matters mentioned, and, I might add, a third: the ‘cash for honours’ business. If you look at any one of those decisions, it would have been abominably difficult, whoever it was that had to take it.
Over Iraq, first of all, our profession is divided. There are those who have read Peter Goldsmith’s advice [now in the public domain] and who believe he was absolutely right in his analysis. Although they may not like the conclusion, they accept it had intellectual rigour. Then there are those who say they fundamentally disagree with it, but there is intellectual dishonesty about some of the arguments put forward. The fact that there is a respectable divided opinion and that even some of those who disagree understand that it was a good, well-constructed and valid discussion of the issues brings us back into the realm of reasonable disagreement.
Are we going to say that there is only ever going to be one view after analysis? Well then, half of the legal profession would be out of business because our task is to police that line. There is a range of reasonable disagreement, and that opinion would have difficult for anyone – whether an Attorney General, a Treasury Counsel, or whoever. Some would have disagreed with the decision taken, others would not have done so.
BAe was an inherently difficult decision. However you reconstruct it, you are not going to remove the difficulties. I think that is the reality that one has to face if one is honest. If it had been up to ‘Mickey Mouse’ to take that decision, ‘Mickey’ would have had a hard time and many would have said he had been paid to decide in a particular way.
Thomas Chacko: Mr. Qureshi has explained well how a serious lawyer at the heart of the administration forces the Government to take the rule of law more seriously. How has this been affected by taking another serious lawyer out of Government? Changing the Lord Chancellor’s office from a job for a career lawyer who might then sit as a judge – and was therefore intimately tied up with the judiciary – into one for a career politician, thereby effectively placing the judiciary under a political Minister is surely in some sense taking the rule of law out of the heart of government?
Baroness Scotland: That is a powerful argument and it has been made by many besides you. It might well be said that to lose one lawyer is perhaps unfortunate, but to lose two starts to look like negligence! The argument that was put very strongly was that the age-old arrangement which was very comfortable for us was totally out of alignment with what was deemed fit and proper for a democratic country in the twenty-first Century. There was, it was argued, no other country that had a ‘triple-hatter’ like the Lord Chancellor who was head of the judiciary, Speaker of the House of Lords and a cabinet minister.
A number of good jurists said that the stance we had taken was a constitutional outrage, an abomination, and that the historic development of our constitution meant the office was organically fit for purpose and suited to us. This rather implied, of course, that we are somehow rather quaint and that generally accepted constitutional rules have evolved for other people and not for us. Many were seduced by that intellectually rigorous approach and the fact that it might or might not work was neither here nor there. We have seen the fruits of change, and they have been delightful in the tasting!
Dr. Andrew Hegarty: I am going to take the next two questions together simply to move things on a bit. We shall ask the Attorney General to respond to both together.
Peter Brown: If the Attorney General advises a Government that some course of action is illegal or unlawful, and the Government proceeds to do just that, is the Attorney General going to resign?
Dr. Gunnar Beck: I should like to offer two comments. The first applies to what the Attorney General referred to as the sphere of reasonable disagreement. The law here is in fact beset with linguistic vagueness, lack of norm hierarchy and so-called called ‘dummy standards’. It might reasonably be claimed that the eight points listed earlier actually embody some of these! It seems to me, therefore, that the sphere of reasonable disagreement is bound in fact to provide a formidable protective shield. It will be very difficult to challenge such advice as vague. Norm uncertainty and dummy standards can always be invoked as reasons which explain why advisers might reasonably differ and thus why the Government may be right whatever others think.
A second point. What argument is there against explicitly buying in much more of the necessary legal advice than the Attorney General seems to think useful? Cost is, of course, a factor, but otherwise it seems to me that contracting out would only increase independence. Is that a misconception?
Baroness Scotland: To date, I have not been able to find an occasion when the Attorney’s advice in relation to legality has been ignored. If, however, it were to happen it would, of course, always be open to an Attorney to consider his or her position. If one has given clear and unequivocal advice, usually both the Attorney and the person to whom the advice has been tendered understands the consequences for each of acceptance or rejection. Of course, then, each Attorney would have to consider what to do in the circumstances.
This leads on nicely to the second part of the second question, about contracting in legal advice. The alternative suggested by the Constitutional Affairs Select Committee (CASC) was that there should be a separation between the legal advisor’s and the superintendent’s roles. The former’s should be discharged by someone in a position equivalent to that of the Treasury Solicitor or of an independent director: essentially a Civil Servant to undertake the role of legal advisor. The other role, that of superintendence, should be given to the Ministry of Justice. That Ministry would then be entrusted with prisons, probation, legal aid for defence, the courts, criminal justice, legal issues and prosecution. All of that in one department! With good reason Lord Phillips did not think that a terribly attractive novelty, for it seemed to trespass on some of our more fundamental legal principles. The notion did not, in fact, have much traction with a lot of people.
I move on to the advice function. At the moment, as Mr. Qureshi has made clear, we have a panel system: panels A, B, C and so on, all made up of independent lawyers who can be called upon alongside Standing Counsel and Treasury Counsel in regard to specific cases. The question is whether a Secretary of State or the Government as a whole would pay more attention to an independent Civil Servant or to a fellow Minister of equal rank. Some would query the notion of ‘equal rank’ because, in fact, the only person really entitled to disagree with the Prime Minister is the Attorney General as the Prime Minister has to accept what he or she says when it comes to the law!
Returning to consequences now and linking the questions together, the result of a fundamental disagreement between an Attorney General and the Government would be that an Attorney might resign. If an Attorney did resign, and on a matter of principle, over the legality of a decision the Government was going to take, history tends to indicate such a Government would not last long. If you look back to 1924 when it was suggested that the will of an Attorney General had been suborned, the Government fell. The sword of Damocles, if you like, hanging over any Government of whatever complexion, is the loss of its Attorney General which might be lethal for it.
That balance is very important. What have I learnt since becoming Attorney is that members of the Government’s legal service may resort directly to the Attorney. They are, so to speak, superintended by their own departments but enjoy a separate right to come to the Attorney in relation to matters of law. So Parliamentary Counsel may approach the Attorney if they think they are being asked to draft anything out of keeping with what the rule of law demands. Government legal service lawyers in the several departments, too, may turn to the Attorney. I am given to understand by Government lawyers that if they give unheeded good advice, it is departmentally a cathartic experience for them to offer – in order, naturally, to assist the department! – to send the matter over to the Attorney.
It is to my mind difficult to see how one might replicate that day-to-day supervision, that overview and that authority, through the medium of ad hoc independent lawyers called in from time to time. Treasury Counsel have a powerful say in what happens because they constantly advise the Attorney – who can also refer matters to a panel. At the moment, then, within the system there is independence as well as the political authority of an Attorney who can say ‘No’ to a Cabinet colleague, and that extra value has been crucial in the decision made to retain the internal Attorney General.
Dr Andrew Hegarty: We are running out of time. I shall take just one more question or observation and then call upon Khawar Qureshi to sum up as he wishes, leaving the last word, naturally, to the Attorney General.
James Pavey: One of your forty-two listed roles, Attorney General, is that of parens patriae, a term perhaps a little more precise than ‘care of the public interest’ as you are literally ‘parent of the State’. In that guise you have a supervisory or superintending role in relation to charities. Examine, however, the Cabinet Office website and there you will find a Minister for the Third Sector with responsibility for charities. The enquirer might be forgiven for thinking the Minister for the Third Sector has rather arrogated responsibility for charities to himself. Do you see any conflict there? If you are not persuaded that there is, are not charities being asked to act contrary to the law in following political inputs?
Mr. Khawar Qureshi, Q.C.: Let me pick up on two points raised earlier.
There is a precedent for the Attorney General being side-stepped. If I recall correctly, the context was the Suez crisis in 1956. This came to public attention due to the endeavours of an academic at Sidney Sussex College, Cambridge, who, on looking through the papers relating to the crisis – and I feel sure some people around at the time were also aware of this –, found that the Prime Minister, knowing the Attorney General would not give favourable advice, side-stepped him and went to the Lord Chancellor. That in itself powerfully illustrates what the Prime Minister of the day recognised as the conventional constitutional effect of adverse advice from the Attorney General.
Regarding whether or not one might hive off the role of the Attorney General and give it to an outside individual, consider the corporate model and the role of in-house counsel. In-house counsel, it is my experience from very heavy commercial cases, are only too glad to farm out difficult decisions to outside counsel. What they do not want is to take responsibility. If, however, there is an in-house counsel who has to take responsibility and who is accountable not just to the board but to Parliament where there is an Opposition keen to grind down both Prime Minister and Attorney General, then this is surely going to produce more accountability than an outside lawyer who might just get it wrong. The worst that can happen to the latter is the sack!
Particularly now, in the context of heightened attention recently drawn to the role of the Attorney General, my personal view is that the balancing act and judgement the Attorney has to exercise are likely to be much more carefully considered than ever before. Whatever the then Prime Minister did in 1956, it was not reported at the time, but if that happened now I doubt very much if the silence would last hours let alone years.
Baroness Scotland: I do not think my role in relation to charities has in fact been diminished. We will still work on charities, as indeed will a number of other departments. As you probably know, when the Charities Bill was going through the House of Lords I was at the Home Office, and I worked very closely with the ministers responsible to try to hone something fit for purpose. In relation to Government legislation, the law officers have oversight. That is not quite the same as guidance and at times things go out without being reviewed as carefully as they should be. We in Government are working to address that issue.
A role I still exercise – I am in fact exercising it this very week – is that of protector of the interests of charities. If someone leaves a large bequest in his or her will to charity and that will is imperfect, or there is in that will a point at issue from which charity could benefit, it is for the Attorney General to represent the interests of charity to make sure that the money bequeathed comes through. I do not think there is any conflict, but the Attorney’s role to represent the public is, I think, of extraordinary importance. One of the things I am hoping we shall be able to achieve through the consultation is to make the Attorney General’s office more outwardly focused – much more identified in public consciousness with guardianship of the rule of law – so that people better understand what we do, why we do it and how we do it.
Some of that is becoming clearer. Consider, for example, the way in which the Attorney is now responsible for unduly lenient court sentences. It is quite extraordinary how much the public now seem to think that if there is trouble, you should look to the Attorney General. In one week I recall about fifteen different occasions when the newspapers suggested: ‘The Attorney General should be asked to determine this issue!’. If I determined all of those matters I should be a one-woman Government, because they were actually responsibilities of other Secretaries of State.
I do not think that there is any inherent conflict. I do think there is a very important role for the Attorney General to play and that the Attorney should continue to play. I believe the office needs to be more outwardly focused and better understood. We must help people to understand better the added value the Attorney can give. The big thing we have come away with from consultation is a real understanding that the general populace have not a clue what we do, why we do it and how it is done.
I really do want to say how much I agree with what Mr. Qureshi said about recognition in Government of the Attorney’s role. The reason the Lord Chancellor was asked for advice over Suez was precisely that he was not a law officer. It is the law officers, and not the Lord Chancellor, who bind Government. The Lord Chancellor was then the head of the judiciary but was not actually in a position to give definitive advice. If he had been able to give such advice, it would have been binding on the Government.
It is important in framing changes that we do not end up with an Attorney outside the Government to whom no one would go to seek disobliging advice of a binding nature. That would be both unfortunate and retrogressive.