Examination of Witness (Questions 580-598)|
4 JUNE 2003
Q580 Lord Campbell-Savours: If the
DPP, him or herself, was the filter, would it be in order for
him or her to consult with the Commission for Standards and Privileges?
Lord Goldsmith: I would have to
Q581 Lord Campbell-Savours: Could
you let us know?
Lord Goldsmith: Certainly.
Q582 Lord Campbell-Savours: The Clerk
of the House referred to the enactment of section 13 of the Defamation
Act of 1996, which he described as "a serious encroachment
on the principles underlying the Bill of Rights". Do you
think it should go?
Lord Goldsmith: I really do think
that is outside my remit, if I may say so. That was passed, as
we all know, in particular circumstances.
Q583 Lord Campbell-Savours: Mr Hamilton
relied on it.
Lord Goldsmith: It did not do
Mr Hamilton any good in the end.
Q584 Lord Campbell-Savours: Do you
think it should go?
Lord Goldsmith: As it happens,
I do not particularly think that it should go. I think that the
circumstances in which someone who believes that he has been defamed
by a newspaper and is precluded from clearing his name because
of a rule which prevented reliance upon what had taken place in
Parliament is capable of causing injustice, and that is obviously
what Parliament thought because it passed section 13 and it believed
that was an injustice. I share that view but that is entirely
a policy question.
Q585 Vera Baird: I am sorry if my
question has been asked. Part of the purpose, as I understood
it that clause 17 required your consent as the Attorney General,
I had thought was in relation to proceedings against a Member
of Parliament which were intended to be non-delegable on the basis
that these strange factors which an ordinary prosecutor would
not understand about parliamentary organisation you would know
about as a parliamentarian and I had thought that that was primarily
why the consent was to be you and not delegated. Do you have any
comment on that? Is that a good thing or is it a bad thing, because
you are, after all, part of government and might be seen internationally
to make decisions on a partisan basis, although of course you
Lord Goldsmith: I am personally
quite relaxed about who the consent should be from. I think there
are two questions. One is should there be a filter at all. I think
a compelling case was made out that because the nature of the
allegation that was made was potentially very, very serious, particularly
to people in public life, the damage could be irreparable, it
is perfectly true that both the Director of Public Prosecutions
and I are capable of stopping prosecutions but it takes time to
get to that point and the damage may have been done, particularly
if an allegation or private prosecution were brought perhaps at
the time of an election or something of that sort. The first question
is should there be any filter at all? I think a compelling case
has been made. Who should provide that consent? At the moment
there are a variety of Acts which are not at all consistent as
to whether it is an Attorney General consent and when it is a
DPP consent. It seems to depend to some extent on what the feeling
was at the particular time the Act was passed. The argument in
favour of it being the Attorney General rather than the DPP, which
came from the Nicholls Committee, was precisely the point that
you made, that the Attorney General would be able to bring parliamentary
knowledge and experience to the decision and also the question
of the delegation down to a lower prosecutor than the DPP. The
argument against it, and the only point I feel very strongly about,
is I do not mind which it is so long as there is no suggestion
that the reason, if it be not the Attorney General is because
the Attorney-General cannot be trusted to exercise this. I know
that successive Attorney Generals have feltas I dovery,
very strongly when it comes to making prosecuting decisions and
public interest that we are not acting as part of the government.
Collective responsibility is not a part of it.
Q586 Chairman: I want to know whether
this suggestion is practicable. Should the Attorney General take
a decision that he should move the Commons without a debate but
leave would be given so there would be some parliamentary control
of it? Do you think that is practicable? We would have to put
it in Standing Orders of course.
Lord Goldsmith: It seems very
Q587 Chairman: It seems to me it
would raise a lot of difficulties. I would like to know whether
you think it would be practicable to do it in that way.
Lord Goldsmith: Two practical
problems spring to mind immediately. I have not given this any
more thought than just sitting here now. First of all, this would
require the law to be changed so that clause 12 was in place but
subject to a resolution of the House. That potentially it seems
to me could be argued to do more damage to freedom of speech than
good because it would be holding a "sword of Damocles"
over the head of particular Members, either those with unpopular
views or those from minority parties. That could be potentially
a very worrying sign. The second practical problem is if I am
moving a resolution in the House, presumably the House would want
to know what the evidence is upon which the charge is based.
Chairman: That is where the practicality
really hits it.
Q588 Vera Baird: Could I follow up
very briefly. This is something I genuinely do not know. You drew
a distinction, I think, in part of your last answer between the
stage of prosecution and the stage of investigation and made clear
that in terms of a person in public office the mere investigation
can be very damaging indeed. Is your consent usually sought at
the outset of an investigation so that you would have some filtering
influence over that or do you become involved much later in the
Lord Goldsmith: I expressed myself
badly. I should have made it clear that it is the fact of starting
the prosecution that would do the damage. If there is no filter
it would be open to someone to go to a magistrate and start a
prosecution then and there.
Q589 Chairman: Which happens in some
states of the United States we are told where there is no filter.
Lord Goldsmith: No, my consent
would not be sought until the end of the process, not at the beginning.
Q590 Vera Baird: So there would not
be any filter on the investigation and the potential danger that
that would offer to your public figure, as you say, particularly
at election time or at a time of a reshuffle?
Lord Goldsmith: I think that the
danger is much more of this being published For a police officer
to interview somebody does not do the same damage at all as a
statement that someone being prosecuted and is appearing in such
and such a Magistrates Court tomorrow.
Q591 Vera Baird: Say if a Parliamentarian
Lord Goldsmith: One would want
to move fairly quickly to resolve that.
Q592 Mr Stinchcombe: Can I take you
back to the suggestion that you have now twice floated, that the
moral turpitude you had in mind might be embraced by some concept
of a breach of duty and whether that would be sufficient? If I
take the example of an office holder in a local authority, that
person's functions would be embraced by powers and duties, discretions
and duties, should we be happy just to have the breach of duty
covered by a definition of corruption or should we look to the
person who is influenced to exercise a discretion in a way which
he might not have otherwise exercised a discretion?
Lord Goldsmith: I was simply saying
that of the variety of potential changes that there could be it
seemed to me that the breach of duty was one that was worth looking
at. I have certainly not attempted to draft or re-draft the Bill
or anything of the sort. Secondly, no, I do not think there is
a problem because a breach of duty encompasses somebody using
a power or a discretion that they have been given inconsistently
with the way in which they are supposed to exercise it.
Q593 Chairman: Are there any other
questions on the parliamentary scene while we are on it? Unless
there is anything that you would like to say about something we
have not covered I would like to finish with one matter which
was raised very recently, that is the exception provided by clauses
15 and 16 about the intelligence services. I have two questions:
One, is it necessary to have such an Article and is it a sufficient
provision to prevent abuse? Secondly, perhaps in a way more important,
have you considered whether to adopt clauses 15 and 16 would be
contrary to our obligations under the OECD Convention and under
the Council of Europe's Criminal Law Convention? Firstly, do we
practically need clauses 15 and 16? Secondly, if we adopted it
would it be contrary to the OECD Convention and the Council of
Lord Goldsmith: First of all I
have to say I have not personally considered the second question.
I have no doubt that others have but I have not, so I cannot answer
that, I am afraid. As far as the first is concerned, it does seem
to me highly desirable that there should be provision in relation
to the security services. The fact of the matter is that security
services are required from time to time to act in a way which
would contravene what the law is in order to protect national
security and to protect the people of the country. I think it
is much more desirable that that should be within a framework
within which Parliament has authorised with checks and balances
and set out clearly rather than leaving it to the discretion of
the prosecutor at the end of the day simply to say whether it
was appropriate or not. This follows the model which we have,
of course, in the Intelligence Services Act in relation to other
matters which I believe do enable the agencies to operate effectively
but subject to the checks and balances which are necessary.
Q594 Lord Campbell-Savours: Can I
take you to the actual language. As I understand it we are now
talking about authorised operations. What happens in an authorised
operation if a particular officer carries out an act, a corrupt
act, which is part of the authorised operation, he has done it
as part of his work during the course of an authorised operation,
is it possible that that person might be shielded from prosecution
if the particular act of corruption in which they were involved
if it fell under the general heading of authorisation but was
not actually authorised? It is very hard to give an example without
talking about, let us say, agents and how they operate in a field.
One can envisage circumstances where the operation is authorised
where perhaps they do something under the heading of that authorised
operation which is not what was intended and which was corrupt
and for which perhaps they should be prosecuted.
Lord Goldsmith: That turns very
much, as it does under the Intelligence Services Act, on the form
and the precision with which authorisations are given. No doubt
those will depend on operational matters, operational questions
and considerations which are not for me but for others as to what
you can predict is going to be necessary in order for some intelligence
officer to be able to do what is necessary in the performance
of his duty. He needs the protection of knowing that if he acts
in accordance with the framework which is set out he is not going
to be subject to prosecution. I suppose the public also need the
assurance of knowing that acts which are done have been through
a process which involves checks and balances and authorisations
through people who are accountable to the public through Parliament.
Q595 Lord Campbell-Savours: Yes.
The actual act that he carries out might not be what was intended
when the authorisation was granted, it might be an act which should
be the subject of prosecution. Can you not envisage circumstancesI
am just putting the proposition to youwhere some might
say, we should be prosecuting this man however we cannot because
he falls under the section which states that if the operation
is authorised he is exempt.
Lord Goldsmith: It is not the
operation which is authorised, it is the act or omission which
is authorised. Clause 15(2) says: "The person does not commit
a corruption offence if the act or omission done or made is authorised
to be done or made by virtue of an authorisation given by the
Secretary of State." The act falls within the terms of the
authorisation and not whether or not it has been done in the course
of an operation, which is authorised. That is why I said that
a lot will turn on the precision or otherwise of the authorisation,
recognising it is a practical fact in advance of certain things
taking place. No doubt it is difficult to predict precisely what
will be necessary. These are not questions for me, these are questions
for those who are responsible for the security services, I am
just looking at it from a point of view of prosecuting.
Q596 Mr Shepherd: A lot of their
work is subcontracted and they become designated and therefore
the code of secrecy is very profound in that system. I am not
criticising, I am just noting it, for the lawful authorities.
For the local authorities to know whether an act has been done
in accordance with the provisions of this exemption is quite difficult,
and for society to ensure that there is a check and balance.
Lord Goldsmith: This is a very
general statement. We have moved to a situation of greater authorisation
and regulation of what intelligence services do as a result of
legislation which has been passed. This fits in with it and includes
parliamentary accountability through particular mechanisms.
Q597 Mr Shepherd: There is no public
interest on this for bringing it to the attention of the proper
authorities that something may be improper. I do not mean to put
this beyond the circumstances of your attendance here.
Lord Goldsmith: Something might
well be brought to my attention, whether or not it falls within
the exemption if the exemption is passed.
Q598 Chairman: Attorney General,
thank you very much for coming, we are very grateful for your
help on these questions. If we have anything else we would like
to ask you we can do it in writing.
Lord Goldsmith: I would be happy
to try and answer it.