John Jackson (London, Mishcon de Reya & Unlock Democracy): Early last November I posted a piece on OurKingdom suggesting that consultation by government is, on occasion, used to stifle the raising of unwelcome questions. I am prompted by yesterday's Times - "Law minister is forced to give up power over political cases"- to return to the theme.
I took as an example in November the then current consultation on the role of the Attorney General, following the issue of a consultative document by the Attorney General (Baroness Scotland) herself. The document contained statements of "fact" intended to inform those consulted. This included the following:
The Attorney General is a Minister of the Crown. The implications of this are that the holder of the office:
- is a member of the Government;
- is appointed by the Prime Minister and holds office while he or she retains his confidence;
- is bound by collective responsibility;
- has in the past been a more or less established member of the party in Government;
- takes the party Whip in Parliament;
- participates in Cabinet and Cabinet committees
In my November post I pointed out that these assertions had the effect of blocking off "not asked for" opinion on a fundamental question. Should the Attorney General be a (party) political appointee?
I said then that this goes to something that "we the people" should be allowed to raise and discuss, at the very least. Other representative democracies have found it possible to embrace, to their advantage, the notion that some Ministerial appointments should be "above" party politics and should be held by those best qualified for the job. Such appointments are "de-politicised".
Arguably the most important reason that this should be considered in relation to the Attorney General is that it would, or should, prevent the powers attached to that office - particularly in respect of law enforcement - being used in support of government policy as distinct from the general interest.
There have been shocking examples of abuse of power by Attorneys General in the past. One of the most remarkable cases was the persecution of Alice Wheeldon and her family by F.E.Smith in 1917. The Wheeldon family were pacifist dissenters, opposed to the conscription of young men to fight in what they saw as an unnecessary (and increasingly unpopular) war, they helped conscientious objectors who had gone underground. They were a soft target prosecuted successfully for conspiracy to assassinate the Prime Minister on what we now know to have been entirely false evidence concocted by security agents, one of whom had served a term in prison for blackmailing a colleague. F.E.Smith, who conducted the case personally, knew that it would collapse if that agent was called to give evidence. He assured the court (with the full authority of his office and hinting at affairs of state) that he was not calling the witness for what he was convinced was "good and sufficient reason". The judge let him get away with it.
The mild reforms following the consultation forecast in the Times would address the question of party political bias - but not pro-government policy bias. The Attorney General will, apparently, keep the right to decide on prosecution in cases where there is state interest at stake. As the Times points out this could include "cases such as the alleged corruption in the BAE arms deal in Saudi Arabia"
The most revealing disclosure by the Times is that according to "one senior political source" Baroness Scotland "has fought a very hard rearguard action over these proposed reforms and was determined to keep most of her existing powers." If that senior political source is correct, it is no wonder that the consultation document steered us away from the hot point. There is something wrong with this!
