My Lords, the role of the Attorney-General in giving consent to a prosecution has been much discussed in the past. Following on from the remarks of the noble Lord, Lord Lancaster, I note that the Law Commission reported in 1998, and the noble and learned Baroness, Lady Scotland, when she was Attorney-General, conducted a consultation following the controversy
over the legality of the Iraq war. The precise result of that consultation is not clear. I am interested in the suggestion made by the noble Baroness, Lady Chakrabarti, that the role requires a fresh review; I agree with that.
In the context of this Bill, it is a simple question: in what circumstances is it appropriate for the Attorney-General to second-guess the decision of either the Director of Public Prosecutions or, in this proposal, the Director of Service Prosecutions? The noble Baroness, Lady Chakrabarti, also made an important point by referring to the conflict of interest that would arise if the Attorney-General has advised on the conduct or legality of an operation, or on the treatment of prisoners, and the issue is, for example, the way in which prisoners have been treated.
I remember that Lieutenant-Colonel Nick Mercer, when he was the senior legal adviser to the group in Iraq, advised that the way in which prisoners who had been taken were being treated—they were made to kneel with a sack over their head and their hands bound behind their back—was a breach of the European convention. He was howled down by the Ministry of Defence for voicing such an outrageous view—one that was subsequently upheld in the European Court of Human Rights.
If the presumption against prosecution survives, the DSP starts with a curb on his discretion, as we have discussed. If he thinks that the circumstances of a case oblige him to ignore the presumption against prosecution, his decision will be based on his judgment, first, whether there is sufficient evidence on a balance of probabilities to result in a conviction and, secondly, whether it is in the public or service interest to prosecute. If Amendment 3 were to be successful in any form, he would also have to take an overall decision on whether the possibility of a fair trial had been compromised by delay.
6.30 pm
So where does the Attorney-General come in? Governments are quick to deny in the reports to which I have referred that there is any political element in their judgment where prosecutions are concerned. Sir Elwyn Jones, whose exercise of the unusual function of the Attorney-General in prosecuting in court—in the Moors murders trial in Chester—I observed, and who was later Lord Chancellor, wrote in 1969:
“The Attorney-General, when he is acting in political matters, is a highly political animal entitled to engage in contentious politics … But the basic requirement of our constitution is that however much of a political animal he may be when he is dealing with political matters, he must not allow political considerations to affect his actions in those matters in which he has to act in an impartial and even quasi-judicial way.”
However, as the noble and learned Lord, Lord Falconer, has pointed out, the decision of the Attorney-General, following that of the Director of Service Prosecutions who has satisfied himself that the presumption does not apply and that he must go ahead, would be seen to be political—what else could it be? The noble Baroness, Lady Jones, suggested that it be subject to judicial review. A victim of a war crime might well wish to review the decision and to seek damages or compensation.
Blackstone suggested in the 18th century that, broadly
“the Attorney’s consent is required where issues of public policy, national security or relations with other countries may affect the decision whether to prosecute”.
I do not consider that the prosecution of a British soldier for a serious crime comes under any of those three traditional common-law headings. What then is the Attorney-General doing in this Bill? Perhaps the Minister would explain.
Of course, the amendments also raise the interesting question of the publication of the Attorney-General’s reasons. The noble Lord, Lord Faulks, said that that would be a “novelty”, but he suggested that it would not be a political decision. Surely the reasons that the Attorney-General would give would be a question of policy rather than an assessment of the evidence which ran contra to the view that had been taken by the Director of Service Prosecutions. We saw last week in Scotland that it took tartan pincers to extract the advice given to the First Minister, even though it largely supported her position.
The constitutional theory is that the Attorney-General is accountable to Parliament for his own decisions and for the decisions of the DSP, but obviously if Parliament does not know what his reasoning is, including any cautions or qualifications he may have given to his advice, he cannot be held accountable for it.
I am very pleased to see that this suggestion is that of the shadow Attorney-General and it may be that, at last, we can see the light. It required a leak to the press to establish that the advice of the former Attorney-General, Sir Geoffrey Cox QC, to the current Prime Minister was that it was legal to prorogue Parliament in the cavalier way in which he did. As for the current admitted breaches of international law over the trade agreement with the European Union, we have not heard a squeak of the advice given by his successor.
We support these amendments in the hope that the Government will explain the need for a triple lock on a prosecution decision and whether the Attorney-General’s decision would depend on the numbers demonstrating in Parliament Square.