Lord Falconer of Thoroton:

Moved by Lord Falconer of Thoroton

10: Clause 5, page 3, line 29, at end insert—“(3A) Where the consent of the Attorney General is sought under subsection (2) or (3), the Attorney General must prepare a report containing his or her reasons for granting or withholding consent, as the case may be, with reference to sections 1 to 3 of this Act, and must lay a copy of this report before each House of Parliament.”Member’s explanatory statementThis Amendment requires the Attorney General to lay out their evidence and assessment as to why they granted or refused consent to prosecute.

There are three amendments in this group, Amendments 10, 11 and 12, which deal with the question of the need for the consent of the Attorney-General before a prosecution covered by the presumption goes ahead. This is an important but quite short series of issues; in effect, the Bill is adding in the consent of the Attorney-General as the third part of the triple lock, before prosecution is brought against military personnel in respect of overseas operations. Therefore, the consent will be required only when a prosecutor has decided that a case where over five years have gone by is exceptional, and the Attorney-General’s consent, or lack of it, will be of real significance only when he or she does not give it.

The consequences of the Attorney-General not giving consent are, in my view, threefold. First, it may well give rise to suggestions that the issue has been politicised. Secondly, the Attorney-General is very frequently involved in making or overriding decisions made in relation to operations overseas. For example, the Attorney-General will often give instruction and advice in relation to conditions of detention. It is worth reading the evidence given by Nicholas Mercer to the Joint Committee on Human Rights, where he described the involvement of the Attorney General’s Office in decisions that he had been involved in as a lawyer when, in foreign theatres of war, the use of force was involved. As such, my second point is that the Attorney-General may well have been involved in decisions that affect that theatre of war. From my own experience as Solicitor-General, I can tell you that that was indeed the case.

My third point is that, if the Attorney-General is going to override the prosecutor’s view that a prosecution should be brought, he will inevitably be increasing the risk that the matter is referred to or taken up by the ICC—because it will see a case where the prosecutor thinks that the prosecution has an over-50% chance of success and the public interest allows it, yet the Attorney-General has not allowed it to go ahead. Fourthly, if the Attorney-General is overriding the view of the prosecutor, which is the only time when this would be significant, questions will arise as to whether that puts the United Kingdom in breach of a whole range of international obligations—the Geneva convention, the United Nations Convention against Torture, Articles 2 and 3 of the human rights convention and the Rome convention, which is the International Criminal Court statute, in effect.

As such, our amendments first require the Attorney-General to give “reasons” as to whether he is giving or withholding consent, and laying them before Parliament. Secondly, Amendment 11 proposes that he must consider whether refusing consent will

“increase the likelihood of the International Criminal Court exercising its own competence”.

Thirdly, Amendment 12 proposes that he must consider whether his refusing consent would constitute a “breach of international law”. These amendments are laid by way of probing. We have real concerns about this provision and that it will not provide added protection but will instead give rise to very significant legal risks. I beg to move.

My Lords, these amendments seek to make the Attorney-General and the Advocate-General for Northern Ireland more accountable in relation to what we might call “late prosecutions”, and in particular more accountable to Parliament. The obligation in Amendment 10 provides for a report to Parliament in the event of either the granting or withholding of consent for such a prosecution. I accept what the noble and learned Lord, Lord Falconer, said—that there may be more interest in circumstances where the Attorney-General does not consent to a prosecution.

Amendment 11 provides that the Attorney-General should give consent if there is an increased likelihood of ICC involvement. In Amendment 12 he or she must give consent if not doing so would lead to a breach of international law. Normally, advice from law officers to the Government is not disclosed to Parliament—nor even is the fact that advice has been sought—so to some extent these amendments are a bit of a novelty.

I have considered a number of lawyers’ views about whether the courts, as opposed to Parliament, could be involved in reviewing a decision by the Attorney-General either to consent to a prosecution or not to consent. The balance of view seems to be a cautious yes, although the courts would be expected to exercise a so-called “light-touch review”. In other words, it is unlikely that the courts would quash a decision of this sort.

I was most interested to hear what the noble and learned Lord said about these amendments because, on reading them, I was not quite sure what would be in the report proposed for receipt by Parliament. What would the law officer have to say? Would he or she simply cite public interest, gravity of offences and reasonable prospect of conviction in the event of a decision to prosecute, and presumably the opposite in the event of a decision not to prosecute? I suppose there might be some reference to the length of time between the acts concerned and the decision to prosecute. Of course, he or she would not be expected to give detailed reasons on the strengths of a particular witness or worries about one aspect of the evidence, or something of that sort. I am not sure what Parliament is going to do with that information, but I accept that accountability to Parliament is generally desirable.

As to the obligation under Amendment 11 in relation to the ICC, my understanding of the ICC—and I have attended one of its conferences in Rome—is that it is a court devoted to the macro rather than the micro, as I said when referring to the evidence of Major Campbell. It is also concerned mostly with offences at a high level.

Such prosecutions are often quasi-political—and I do not mean that in a pejorative sense. I recall that the perceived political element of the court was such that a number of countries walked out of the conference in Rome in the first few minutes as a protest at the alleged political element. Of course, the Rome statute is one to which the United States of America is not a signatory.

In one sense, the failure to prosecute or a decision not to prosecute by the Attorney-General must mean that there is an increased likelihood of ICC involvement, although I am not sure how that can be assessed. I entirely support our involvement with the ICC, but there are often complex reasons, including the availability of resources, which determine whether or not there are prosecutions. Our general support for the ICC as an institution should not be diluted in any way, but I am not sure that fear of ICC involvement should mean that the Attorney-General cannot come to the conclusion he or she thinks appropriate in these circumstances.

Similarly, the question of a putative breach of international law seems to me to be rather superfluous. There is an obligation, as I understand it, on the part of the law officers, as Ministers, to comply with the Ministerial Code. That obligation includes an obligation to obey the law, including international law. I do not want to revisit the difficult territory covered by the internal market Bill, but my understanding of the Ministerial Code, and I am on record as saying as much in your Lordships’ House, is that the obligation includes international as well as domestic law—although sometimes international law may not be as easily ascertainable—so I am not currently aware of the need for this extra obligation.

I acknowledge that these amendments are essentially probing, so that Parliament can understand better the process by which the Attorney-General would be involved in so-called late prosecutions. I share the interest of the noble and learned Lord in how the process might work generally, but I am not for the moment persuaded that any of these amendments is either appropriate or necessary.

Finally, I am uneasy about the alleged political component of the Attorney-General’s involvement. I think the role of the Attorney-General in this sort of circumstance is pre-eminently not a political one, but it is ironic that the involvement of Parliament in some way that is envisaged by these amendments could, in fact, run the risk of some important boundaries being crossed.

The noble and learned Lord, Lord Morris of Aberavon, has withdrawn from this group, so I call the noble Baroness, Lady Jones of Moulsecoomb.

My Lords, that was quite interesting, actually, because of course these amendments are trying to create some sort of accountability for the Attorney-General. I thought the noble Lord, Lord Faulks, was going to say something about the Attorney-General being rather more political than in the past, because of course the office of Attorney-General has been sadly undermined in recent years, particularly last year with the Attorney-General’s quick defence of Dominic Cummings’ unlawful behaviour. That was, I fear, just one example, and the fact that she then so quickly rowed back from her position to a position of it being only her political decision and not a legal opinion shows how easy it is for an Attorney-General to step over that increasingly faint line. In that, I think that she mistakenly excused illegality in the name of political expediency. We, of course, cannot become complicit in that, so I was extremely pleased to sign the Shadow Attorney-General’s Amendments 10, 11 and 12.

I am concerned that this triple lock in the Bill can actually lock justice out. Even if the power of justice is strong enough to overcome the first two locks, we have to trust the Attorney-General to make the right decision on the third lock, which of course would be very difficult. The Attorney-General therefore has to publish their reasons when making decisions, because these decisions should be made according to normal standards of administrative propriety and should rightly be subject to judicial review. Where the reasons for the decisions are irrational, unlawful or irrelevant, they should be able to be overturned. Where the decision is purely politically motivated and has no foundation in facts, the law or the interests of justice, equally it should be overturned. These amendments are essential to ensure that this is the case.

Such important decisions as those envisaged in the Bill must never be made on a whim or be purely political. Justice has to be done and be seen to be done. I would just like to add that various noble Lords have suggested that some things are impossible to understand if you have not experienced warfare or action of that kind. Of course, that is absolutely true, but we are not talking about a lack of sympathy for service personnel; we are talking about criminal acts. That is the basis of what this law is about; it is not to do with whether we have sympathy or not, it is about criminal acts, and it is important to remember that.

My Lords, I am grateful to my noble and learned friend Lord Falconer and to the noble Baronesses, Lady D’Souza and Lady Jones, from whom we have just heard, for tabling these amendments. They have cemented in my mind concerns that I expressed at Second Reading about the role of the Attorney-General as the third lock in the architecture of this Bill.

In response to comments made by the noble and gallant Lord, Lord Stirrup, about how, if it is such a problem, we have a problem with the role of the Attorney-General in the constitution per se, I would say not quite. We know that the Attorney-General wears different hats—sometimes legal adviser to the Government and sometimes to Parliament—and sometimes acts in a separate role in relation to the public interest. Those hats are capable of being worn at different times. No doubt it takes a bit of skill to get the balance right, but in normal, civilian prosecutions, I suggest that an Attorney-General is very unlikely to have been giving legal advice on, for example, the investigative process; they would be very unlikely to have given advice directly to the police on the search that gave rise to the prosecution.

This is not the case in war and conflict, where the Attorney-General, as legal adviser to the Government, has undoubtedly been involved in the rules of engagement; they have quite possibly given very detailed advice on those rules and, as my noble and learned friend said, on matters concerning detention and so on. To make potentially the same person who advised on the legality of an operation the third lock on whether alleged criminality should be prosecuted seems to me unlikely to give confidence—the word “reassurance” has been used a lot—to anybody, whether that be civilian members of the public or military personnel. After all, this could be an Attorney-General who advised on the operation or one from a party that was very much opposed to the operation before it came into government. I have real concerns about the politicising of these prosecutions. One has only to think about the controversies in recent conflicts around the world to see that potential damage to public confidence, including among members of the Armed Forces on the front line and their families.

If the noble Lord, Lord Faulks, will forgive me a quick word, there was a little having of cake and eating it in his remarks. He referred—I do not think as a criticism—to the ICC as quasi-political. Given these various hats, someone might well say that of the senior law officer involved in these matters who sits in or comes to Cabinet, including war Cabinets. In terms of accountability, to give this role to the Attorney-General is to give it to a political person who is appointed directly by the Prime Minister—quite possibly, as I say, the Prime Minister who authorised an operation—and for that all to be in the shadows. The Attorney-General’s original advice on the legality of the conflict and perhaps specific operations is currently in the shadows and now the Attorney-General’s veto of the independent prosecutor’s decision will quite possibly be in the shadows as well. That is highly problematic.

I am grateful for these amendments, which I think are probing. In any event, I think the Attorney-General should not be involved in this way at all. It seriously risks politicising already very delicate matters.

It is a great pleasure to follow the noble Baroness. I am particularly interested in her point about the Attorney-General not only offering advice on the potential conflict but being put in this position as well.

These amendments firmly caught my eye. The noble and learned Lord, Lord Falconer, outlined in his opening comments some of the challenges of overseas operations in a military context and politicisation—although in my mind all conflicts are political in one form or another. I immediately looked to see what historical examples there were of advice being published by the Attorney-General. There are not many. If we were to continue the theme of overseas operations and look back to probably the most controversial one of recent years—from 2003—the Attorney-General’s advice was certainly not published for that. Nor, I understand—though I am happy to be corrected—was it even given to Cabinet at the time. It is worth remembering how times change. There now seems to be an eagerness to publish the advice of the Attorney-General that was not there in 2003.

My instinct is that giving reasons goes against the grain of the constitutional principle regarding law officers’ advice: law officers do not confirm the facts or publish their legal advice or principles. I think that that is an important principle that enables frank advice to be given. If we accept that, an exception would create a slippery slope that could extend to other areas. There is also the reality that the sorts of information that the reasoning would be based on could have security implications, so should not be disclosed and would largely have to be omitted anyway. Lastly—I am no expert and this is a genuine question for noble and learned Lords in the House—I think that a judicial review, based on ordinary public law grounds, would surely be a sufficient check on decisions such as these.

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.

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.

My Lords, this has been perhaps a narrower debate in relation to interesting legal issues but none the less, once again, productive and fertile. I realise that these amendments are the product of the noble and learned Lord, Lord Thoroton, who has applied his considerable legal gifts to their drafting.

As has been explained, Amendments 10, 11 and 12 to Clause 5 seek to place a requirement on the Attorney-General to report to Parliament with the reasons for granting or withholding consent. The requirement in Clause 5 is that the consent of the Attorney-General for England and Wales, or the Advocate-General for Northern Ireland, has to be given before a case of an alleged offence committed by a serviceperson more than five years earlier on an overseas operation can proceed to prosecution. The noble Lord, Lord Thomas of Gresford, asked what the Attorney-General was doing in this Bill. We have introduced the consent function because it is important for service personnel and veterans to be confident that their case will be considered with care at the highest levels of our justice system.

The Attorney-General is left to discharge that obligation independently. As the Committee is aware, requiring the consent of the Attorney-General for a prosecution is not unusual. She already has numerous other consent functions, including for the institution of all prosecutions for war crimes offences under the International Criminal Court Act 2001—nor does it mean that the Government have any role to play in a decision on consent. It is a constitutional principle that, when taking a decision on whether to consent to a prosecution, the Attorney-General acts quasi-judicially and independently of government, applying the well-established prosecution principles of evidential sufficiency and public interest. I seem to remember that on Second Reading my noble friend Lord Faulks articulated that position very eloquently, and I think that it is generally understood.

We feel that it is not appropriate for the Attorney-General to comment on any individual or ongoing investigation or prosecution. I am aware of no statutory requirement anywhere else for the Attorney-General to report in relation to individual casework decisions. We do not believe, therefore, that it would be appropriate to introduce such a requirement in the Bill. As I have said elsewhere, preserving the independence and discretion of the prosecutor is vital to the Part 1 measures. Without this, we cannot ensure that cases are treated fairly, nor can we prevent the ICC from stepping in. Adding a measure to the Bill that would require the Attorney-General to make a public statement before Parliament about specific prosecutions would quite simply interfere with that discretion. That would be an unusual and, I suggest, unwise innovation. Interestingly, critics of the Bill have expressed concern that giving the Attorney-General a role in Part 1 risks introducing politics into what should be a criminal justice process. Indeed, the noble Baronesses, Lady Jones of Moulsecoomb and Lady Chakrabarti, voiced these concerns. We do not agree that this is true for the Bill as drafted, but I pose the question: surely these amendments risk that precise outcome. Certainly my noble friend Lord Faulks confirmed that apprehension.

Amendments 11 and 12 would require the Attorney-General to make a prediction about whether the International Criminal Court will exercise its competence in a particular case, make a judgment about whether a prosecution would

“lead to a breach of international law”,

and then compel her to act in a certain way. I think that even the noble and learned Lord, Lord Falconer of Thoroton, would agree that both these amendments would be an unprecedented extension of the normal consent function that the Attorney-General has in relation to the prosecution of offences. The International Criminal Court is an independent body, and it would be inappropriate for the Attorney-General to speculate about or pre-empt decisions that the International Criminal Court might make. Again, my noble friend Lord Faulks commented on that. The phrase “international law” is included in Amendment 12 but is undefined. It is not clear which international Laws the amendment is attempting to incorporate into the Bill.

In my opinion, we should allow the evidence that has been produced to the prosecutor, and the public interest, to speak for itself in each individual case, considered by an independent prosecutor, using their discretion. We should not force the Attorney-General to potentially compromise his or her independence in a particular case by adjudicating on these other matters. For that reason, I ask the noble and learned Lord to withdraw his amendment.

I am obliged to everyone who participated in the debate and to the noble Baroness, Lady Goldie, for the care with which she answered the questions raised.

As the debate went on, I became increasingly concerned about the involvement of the Attorney-General. I am a very strong believer in the necessity for a Minister in the Government who has functions to protect the rule of law in the way in which the Attorney-General does in the Government of the United Kingdom and the Lord Advocate does in the Government of Scotland. In relation to the criminal justice system, including for the military, it is critical that the Attorney-General is, and is seen to be, politically independent of the Government in a way in which the current Attorney-General, Suella Braverman, did not seem to be in relation to the Dominic Cummings question. There are also questions over the Lord Advocate in Scotland in relation to the redaction of Mr Salmond’s evidence to the constitutional committee.

What is being proposed here is, in effect, a circumstance in which the Attorney-General will override the view of a prosecutor. If the Attorney-General agrees with the prosecutor on bringing a prosecution, and the decision will only come to the Attorney-General once a decision has been made to prosecute, he or she will be overriding that decision. If the provision is to remain in the Bill, only if the Attorney-General or the Advocate-General explains why he or she is doing that will there be a sense that politics has not intervened. Only if he or she gives reasons that stand up to scrutiny will a sense of political involvement be removed.

I completely accept that my proposal is novel and would not constitute formal advice, and I accept the point made by a number of noble Lords that it would break with precedent. However, it is so important to preserve the evident independence of the Attorney-General. I agree with what the noble Baroness, Lady Goldie, said to the Joint Committee on Human Rights that in performing this function, the Attorney-General would be acting entirely independently of government. If he or she says no to a prosecution that a professional prosecutor has said should go ahead, they should explain.

I will of course think carefully about what noble Lords have said in this debate but, for now, I beg leave to withdraw the Amendment.

Amendment 10 withdrawn.

Amendments 11 to 13 not moved.

Clause 5 agreed.

We now come to the group beginning with Amendment 14. Anyone wishing to press this or anything else in this group to a Division must make that clear in debate.

Clause 6: “Relevant offence”