26
Examination of witnesses
Victoria Prentis, Michael Tomlinson and Lord Stewart of Dirleton.
Q1 The Chair: Good morning. This morning, we are taking evidence from the United Kingdom’s three law officers: the Rt Hon Victoria Prentis KC MP, who is the Attorney General, and the Advocate General for Northern Ireland; Michael Tomlinson KC MP, who is the Solicitor General; and Lord Stewart of Dirleton KC, who is the Advocate General for Scotland. I should emphasise that the word “general” in your titles is an adjective and not a noun. Nevertheless, they are very impressive titles and carry big responsibilities. Thank you very much for coming to see us this morning. We look forward to hearing from you.
Victoria Prentis: Thank you for having us.
The Chair: I will start with a quite general question. I will take you in the order I presented you, with the Attorney first, Solicitor next, and Advocate General third. First, can you tell us whether, as a law officer, you consider that your duty to the rule of law has a greater priority than party considerations, bearing in mind that you are a member of a party as well as a law officer?
Victoria Prentis: Yes, is the short answer. I consider that as a barrister my first duty is to the court. I have always felt that way since my call, and although I have other, sometimes competing, considerations—I have, for example, duties to my constituents in Banbury, duties to my party, and duties to the Government, of which I am a member—I definitely feel, particularly in this role, that there is no question, but that my duty to the court comes first.
The Chair: How does that play out in practice if an issue arises, for example? Obvious problems arise under the European Convention on Human Rights, and issues may arise as to whether or not what is being proposed is compatible with the convention rights. How do you go about that task?
Victoria Prentis: That goes to the very core of what it means to give the government legal advice. Not all the advice we give is welcome. It is very important that we are able to help Government Ministers into a position of compliance with both domestic and international law to make sure that the legislation that is prepared by government is appropriate and to ensure that the Government litigate properly before the courts. That is at the very core of all our roles.
It is a job that we do together. When the advice is controversial, if I can put it that way, we are particularly keen to act as a three. We give our written legal advice together where possible. We might follow that advice up in conversation or in private conversation with Ministers in government, but we try to make sure that our advice is clear and that there is no dispute as to the boundaries of that advice.
Of course, a very important part the role is that we can help the Government to come up with solutions that make sure that the proposed course of action is perfectly proper within the law. We may well have ideas, mitigations and other ways of dealing with a problem that mean that the situation proposed is a lawful one.
The Chair: Yes. We may explore this in more detail later on, but of course the problem arises where the Government say that they have a red line and you realise that you are coming right up against that red line and there is a real issue as to whether that line should be crossed.
Victoria Prentis: That is at the very core and heart of the role of Attorney General. You are not here to be popular, and you have to be able to say no, where necessary, to the Government generally, the Prime Minister and other Ministers in particular. That is a very important part of what we do. It is also, if I may stray into my own history, a very important part of what government lawyers do. As you know, I was a government lawyer for the vast bulk of my career. I do think that government lawyers have duties. We have the AG’s guidance, which sets out what those duties and responsibilities are, and we need to make sure that the Government are complying, both in legislation and in litigation, with the rule of law.
The Chair: Yes. Solicitor General, do you have anything to add to what has just been said?
Michael Tomlinson: I do not think so. The straightforward answer is yes. Our role is very different from that of other Ministers and, of course, much of what we do, much of what I do, which the Attorney kindly delegates to me, is very much not of a political nature in any event. I am thinking in particular of the public interest work that inevitably ends up on my desk. That is absolutely not in the political domain, but we are both politicians. I am an elected politician for a particular party in my particular constituency, and I suppose it is that tension that makes the role quite so interesting.
The Chair: As far as organisation behind you is concerned, you share a department with the Attorney. You are in the same department with the same officials behind you.
Michael Tomlinson: That is exactly right. I regard myself as the Attorney’s number two. Whether she regards me as that I do not know, but I very much regard myself as a deputy to the Attorney General. The Attorney, in terms of division of labour, very much encourages me to do the public interest work, unduly lenient sentences, consents to prosecute where the Attorney’s consent is required, and the like. I describe it as much of the paperwork that ends up on my desk.
The Chair: Yes. Advocate General, I have understood that you are part of the team as well, but do you have a separate department or do you share officials with the Attorney and the Solicitor?
Lord Stewart of Dirleton: There is a degree of overlap, in the sense that we see the same officials at our regular law officer meetings, for example, and I receive input from their officials, as the Attorney and Solicitor do from time to time from my officials, particularly in relation to Scottish aspects.
If I could come back to the question that you posed originally to the Attorney General, from a political standpoint I would like to echo the Attorney’s words about the collegiate approach that we have found it useful to take. My position is, of course, different from my two law officer colleagues. I do not have a constituency. I was appointed to my post. I was not in front-line politics in any capacity before I came in. That, together with the fact that I sit in the House of Lords and so exercise a law officer function in your Lordships’ House, I think augments the strengths of our collegiate team, because it brings a set a different perspectives.
Similarly, our different experiences at the Bar are complementary. The Attorney has already mentioned her government legal background. My background for the past 20 or so years has been predominantly in the criminal courts in Scotland, so a great deal of advocacy work and a great deal of appellate work as well as first instance work. Between the three of us, we like to think that, with our very competent officials and recourse to government legal advisers, we do our best and do a good job in advising the Government.
The Chair: Thank you. We now move in a little more detail to international law.
Q2 Lord Keen of Elie: Good morning. Putting aside your duties to the courts, as law officers you have an obligation to uphold the rule of law, and that is fundamental to the task you perform. Do you agree that that obligation must extend to upholding the rule of law in the sphere of international law and to ensuring that the Executive adhere to their obligations in international law?
Victoria Prentis: The short answer to that question is yes, our duties extend to international law.
In brief, domestic law and international law are quite different beasts; they are created in different ways and ruled upon and adjudicated in different ways., but our duty to international law is clear. The Government are committed to that. They have advanced that argument in litigation relatively recently. There is no doubt in my mind that as a country that believes very strongly in the international rules-based order and prides itself on its ability to treaty and to contract with states around the world, we take our obligations in the international law sense very strongly.
Lord Keen of Elie: You mentioned that the origins of domestic law and international law are different, and that clearly is the case, but do you agree that you have an obligation to uphold the rule of law in the sphere of international law just as much as in the sphere of domestic law?
Victoria Prentis: I think, Lord Keen, you are tempting me into defining the rule of law in a way that much more advanced lawyers than I am have not been keen to do. I am not trying to be clever about my choice of language at all. I am saying merely that in my duties to ensure that the Government remain on a lawful footing, in legislation and in litigation, I have to make sure that they comply with both the domestic legal framework and the international framework. The way the law is managed is slightly different, but I do not think one is in any way more important than the other. Does that help you?
Lord Keen of Elie: Let me quote Lord Bingham: “the rule of law requires compliance by the state with its obligations in international law”. Do you agree with the late Lord Bingham?
Victoria Prentis: Yes, I agree with the late Lord Bingham.
Lord Keen of Elie: Very well.
Victoria Prentis: Many great lawyers have tried to define “the rule of law”. Lord Bingham chose to include international law in his definition. Others do not. I do not think that is the key issue here. I think the important issue here is that I take very seriously my obligations to encourage the Government to act in a lawful manner, or to make sure that the Government are acting in a lawful manner, both on the domestic front and on the international front.
Lord Keen of Elie: The Ministerial Code makes clear, as it was explained to the High Court in 2015, that Ministers must adhere to the rule of law both in domestic law and in international law. You accept that?
Victoria Prentis: Yes. The current Ministerial Code does not have exactly that wording. I do not read anything very seriously into that either. The Ministerial Code is merely a codification of the duties that we are under. As I have said, I take my duties in the international law sphere very seriously indeed.
Lord Keen of Elie: With respect to the Ministerial Code, it was amended to take out the reference to international law, but the Government then assured the court that, nevertheless, the reference to the rule of law included the rule of law in the sphere of international law.
Victoria Prentis: Yes, it did. I know that the Government in litigation have said very clearly that we consider international law to be what we want to uphold. I think we are a country that feels our international obligations very seriously indeed, particularly at a time of enormous unrest around the world, and we want to make sure that we present ourselves and do in fact act in a way where it is clear that we contract properly, we sign up to treaties when we want to, and we have a standing on the international stage that is very important to us.
Q3 Lord Anderson of Ipswich: Thank you for being so clear. What you said, to me at least, was welcome, but I wonder if I could just try to pin that down a bit further by addressing a question to all three of you. I read a piece in the Guardian, I think about the time the internal market Bill was being prepared, September 2020, which quotes from a three-page letter sent from the Attorney General’s Office to a senior Whitehall official at the Europe Legal Group.
I appreciate, of course, that none of the three of you were law officers at the time. You do not need to have seen the letter because it summarises in two paragraphs what was then a distinction in views between different law officers. I would like all three of you to say which side you come down on so that we can see whether harmony has been restored.
I will quote the paragraphs: “It is the opinion of the advocate general for Scotland”—who was, of course, Lord Keen—"that the terms of the ministerial code expressly reflect a constitutional convention that ministers shall act in accordance with the rule of law, which in his view includes international law. In his opinion, that includes the obligation under international law to act in good faith with respect to the UK’s treaty obligations. In contrast, the attorney general and solicitor general are confident that there is a strong legal basis, supported by authorities, which separate the rule of law into its domestic and international spheres. In their view, the reference to ‘law’ in the ministerial code can only be a reference to UK law and UK constitutional principles”.
So my question to all three of you is: do you agree with Lord Keen, or do you agree with Michael Ellis and Suella Braverman?
Victoria Prentis: I am so sorry, Lord Anderson, I have not read the letter or the article to which you refer, but I will make sure I do. I suspect what you are really asking is: “Is the Ministerial Code sufficiently inclusive now? Should it include international law as well, in terms?”
Lord Anderson of Ipswich: Certainly, in a world where the interpretation of the code might depend on who occupies the position of law officer in any given Government, it might be argued that there is a strong case for making things a little clearer, as they used to be. However, my initial question was a much more factual one. You have made your position pretty clear, if I may so, Attorney.
Victoria Prentis: I think I have.
Lord Anderson of Ipswich: You are on the first of those paragraphs. I wanted to see whether your colleagues agree.
Victoria Prentis: I would, however, push back slightly. The Ministerial Code is not law. It is a codification of the rules and duties—the Nolan principles of public life, for example—to which Ministers are held and should be held. It is a matter for the Prime Minister to write it, and I do not think we should view it as statute. However, I take your point and I am very happy to pass over to the Solicitor. I hope I have made my position sufficiently clear.
Lord Anderson of Ipswich: Indeed, yes.
Michael Tomlinson: May I address it this way? The Attorney is right, and I think this committee’s excellent report, if I may say so, confirms that the code is not the source of law, nor indeed the source of the duty on Ministers. That is absolutely right, and I completely endorse what the Attorney says in that regard.
More generally—I will come back to the specific point—I agree with the Attorney that domestic and international law are different beasts. I think, Lord Keen, you made that point very clearly in the report itself. It is “more fluid and complex than the operation of domestic law”. Those are your words, Lord Keen. I agree entirely with them. That is absolutely right. I also agree that parliamentary sovereignty is different from international law. Those are my views.
Lord Anderson of Ipswich: Does that put you on Lord Keen’s side or on Suella Braverman’s side?
Michael Tomlinson: It puts me on Michael Tomlinson’s side.
Lord Anderson of Ipswich: You are taking a middle position between those two statements.
Michael Tomlinson: No, I am not. I am just acknowledging that there is an argument in relation to parliamentary sovereignty that is perfectly valid and perfectly properly held. If you describe that as a middle view, so be it.
Lord Stewart of Dirleton: I think I am with the Solicitor General. The matter of parliamentary sovereignty is such that Parliament has, as it were, universal powers, and if those conflict with any obligations arising elsewhere, on our view of parliamentary sovereignty that must take priority. I see the role of the law officers in seeking to guide and to influence on a case-by-case basis as and when these matters come up.
I bear in mind the matters to which the Solicitor General referred in relation to Lord Keen’s submissions to the committee, which ultimately formed part of the report. The rule of law itself, as I think the Attorney said, has been part of a conversation since the days of Aristotle. It was doubtless not formulated by Aristotle first; he doubtless reflected arguments in the stoa at the time. It has continued. It defies attempts to rationalise it into a series of propositions. Lord Bingham, by expressing the matter in eight bullet points in his book, has done a great service for lawyers in relation to clarifying where the points of tension may arise. None the less, when we talk of the rule of law, in my view we speak of a conversation than of a settled view that is not susceptible to further change.
Lord Anderson of Ipswich: One of my favourite definitions is from the Harvard philosopher Judith Shklar, who once described the rule of law as “just another one of those self-congratulatory rhetorical devices that grace the public utterances of Anglo-American politicians”. However, it is now enshrined in statute. It is in our 2005 Constitutional Reform Act. It therefore needs to be given a meaning, and what I am hearing from is that, depending on who occupies the role of law officer at any given time, at least three interpretations are possible of the phrase “rule of law” in the Ministerial Code. Although of course I accept that the Ministerial Code is not—
Victoria Prentis: May I come back for a moment? I have the utmost respect for this committee, as do we all. I suspect that if we were to go around this committee, we would all come up with a slightly different definition for the rule of law. We would all include some core facts, I am sure. I think the independence of the judiciary would be up there. I think access to the law would be considered very important. I think equality of arms before the law would be a key one. I do not want to speak for you all, but I suspect that would be the case.
In practical terms, you have heard three slightly different definitions from us today, and we have been challenged. Obviously I am not going to give away the confidences of our clients by saying on what specific issues we have been challenged, but we have dealt with some challenging issues in the eight months that Michael and I have been in post—Keith has been in post longer—and we have managed to come up with an agreed conclusion in those matters. So I really would not read too much into our definitions of what is a very important concept, but one that has proved very hard to define.
Michael Tomlinson: In this committee’s own report, I think each and every witness who appeared before you attempted a definition, or gave a little stab at their own definition, of the rule of law. I quite like Lord Denning’s formula that however grand you are, it does not matter; the law is grander still. Each gave their own answer. The Attorney is absolutely right: there will be a core answer there, but each of us may have a slightly different gloss on it. It is there in your report with the evidence itself.
Lord Anderson of Ipswich: There are, of course, some well-established international definitions of the rule of law; I am thinking of the Council of Europe’s Venice Commission definition of 2016 and—I will make myself very unpopular here—the definition in the EU’s conditionality regulation, which has been the subject of a judgment by a 25-judge Court of Justice upholding its provisions.
Do you not think, since it seems possible for views to fluctuate depending on who is in favour as a law officer, there would be some value in trying to pin it down a little further? Otherwise, Judith Shklar is right, is she not, and this becomes a convenient, high-sounding phrase that on inspection, in the difficult cases, does not really mean anything at all.
Michael Tomlinson: The challenge is: how do you build on perfection, which is the answer in Lord Bingham’s eight principles?
Lord Stewart of Dirleton: As Professor Finnis said—I paraphrase—broadly speaking, the rule of law is apt to describe a legal system that is working overall pretty well. The other phrase that I think Lord Bingham quotes in the preface to his book is of another American academic, whose name I forget, who says that it can be resolved down to “Hurray for our team”. The point that I seek to make, and I hope not facetiously, is this: that attempts to pin the matter down risk running into problems where succeeding law officers in a succeeding Government do not share the same views.
Q4 Lord Foulkes of Cumnock: Good morning, Attorney General, and welcome to you and your colleagues. As the first non-lawyer to come in from the committee I am coming in with a bit of trepidation, but I was very impressed by your introductory remarks where you said that the duty to accept international is clear and that this Government pride themselves on accepting obligations. I presume that includes the obligations under the European Convention on Human Rights.
Victoria Prentis: Yes, it does.
Lord Foulkes of Cumnock: Good. Then why, in Clause 54(2) of the Illegal Migration Bill, have you included a provision that “A Minister of the Crown may … make arrangements for removal … not to apply in relation to the person”? That goes completely against a decision of a court to which we adhere.
Victoria Prentis: I will not get too drawn into specific discussions on the Illegal Migration Bill. We do not, by convention, talk in public about whether we have advised or precisely what we have advised the Government in any specific issue, and the Illegal Migration Bill is clearly a live issue; it is before your Lordships’ House today, and Lord Stewart will be on his feet later today representing the Government in the House of Lords. As you know, we are also anticipating a ruling from the Court of Appeal tomorrow morning on the substance of the Rwanda policy.
I am very sorry, but I will find it very difficult to answer your question with the specifics that I think you would like me to. Can I say broadly that my career as a government lawyer has led me to think very deeply about the duties of the Government as both a legislator and a litigant? I am in no doubt that it is not right that the Government should take an argument that is not proper to a court, but that it is perfectly proper for the Government, when they have a respectable legal argument and when they feel that the law should be tested or, indeed, in area where the law is not completely clear, to take that argument and proceed with it.
Lord Foulkes of Cumnock: You can see why I am just a little sceptical about all the wonderful words you said at the start about adherence to the rule of law, how we are in the forefront of it and so on, when this is a court that we were principally involved in setting up—Winston Churchill was involved with the Council of Europe; we set up the European court—and now you are part of a Government who are supporting a clause that makes it clear that just a Minister, not Parliament, could overturn a decision of the European Court of Human Rights.
Victoria Prentis: I am so sorry, Chair, but will you forgive me if I do not get into the specifics?
The Chair: I understand your problem.
Victoria Prentis: What I would say in answer, if I can try to keep this as broad as possible—I am sorry, I really am—is that I take the convention very seriously. I have practised for almost all my legal career, apart from at the very beginning, in the human rights field. If I have a specialism it is Article 2 and Article 3, with a few bits on prisoners thrown in, and I read the judgments of the Strasbourg court carefully. Obviously, while upholding the independence of the judiciary, I agree with some of them. I do not necessarily agree with all of them. I have advanced cases on behalf of the British Government that we have lost from time to time.
However, what I would say is that we have the best track record of any state party before that court. We have the utmost respect for that court. This Government support being part of that court in the ECHR, and the Prime Minister has said that himself from the Despatch Box; I have heard him do it. I had a really good trip to the Strasbourg court in February this year, and we were able to talk through some of these issues very frankly both in public and in private.
Lord Foulkes of Cumnock: I completely understand the inhibition on you for commenting on this. Can I also say, as a member of the Parliamentary Assembly of the Council of Europe, that we visited the court just after you and got not the same impression but the same facts: that we are in fact one of the countries that comes out best in terms of referrals to that court. That is why I am even more disappointed that we are not dealing with it in this case.
Q5 The Chair: May I pick up a phrase you used in answer to Lord Foulkes? You used the words “respectable legal argument”, and I would like to explore that a little further with colleagues. The question that is passing through my mind is whether those words are sufficiently meaningful to maintain public confidence.
Mention has been made of sovereignty of Parliament. Of course, Parliament can override international law if it wishes. Then the question is: is there a respectable legal argument that would enable you to advise Ministers that they should do that? Can you elaborate a little more on the thought process that you employ, Attorney, in deciding whether to say yes, whether the phrase “respectable legal argument” is one that you apply, and what it means to you.
Victoria Prentis: Yes. I start from a position of my professional obligations, as a lawyer and as a barrister, to the court, which is where your first question started. I must be honest about this; I then come with a great deal of Government Legal Service experience to that particular test. It is a test that was set out in AG’s guidance. We still have Attorney General’s guidance, and it is there to assist government lawyers in the course of their work. I also, because I was a government lawyer—well, I am now, but I was for my whole career—come at this from a position of understanding how government lawyers are supported in their work. I know, and I really do believe this, that the Government have extra duties as a litigant before the courts. We have the duty of candour. We know that. That has come from case law. We also have a duty to advance proper arguments—as all lawyers do, but I think we probably do a bit more.
What that means can vary from case to case. If, as I said earlier, a legal position is not clear and needs clarification before the court, that may well be a good reason for the Government, who are in a strong position as litigator, see a wide range of litigation and are well resourced, to proceed. It may well be proper for the Government to try to take a case forward to clarify that argument. However, I am in absolutely no doubt that the argument is one that any lawyer must consider to be a proper one to put before a court. That is, it cannot be an argument that would be improper to advance.
The Chair: Yes. I think our concern was increased by some remarks made by your predecessor, who suggested that government lawyers have been too cautious in their approach and that they should adopt a solution-based approach, be inventive, and so on. That strikes us as stretching the “respectable” argument rather far.
Victoria Prentis: I feel very strongly, as a former government lawyer, that I am well supported by the Government Legal Service. In my experience, the Government Legal Service is full of lawyers who have a firm understanding of our constitution, based in the common law and the way it evolves—which, as you know, is through interaction with the courts—and, yes, a creative approach, but that in no way negates their obligations; their professional obligations and their additional obligations as government lawyers are very important to them. There is nothing improper in a government lawyer suggesting mitigations or other ways of achieving a policy aim that the Government wish to achieve which are not in themselves improper or unlawful. Does that help?
The Chair: I think she suggested that you should adopt a private sector approach to this. Taking yourself back to private practice, you might imagine cases where you give your initial advice, which the client does not like, and they say, “I’m sorry, I want to press this argument”. Then you are faced with a position as to whether, as a responsible lawyer, you can say, “Yes, you should go ahead with this”, and you have to begin to apply a test. Is that not where the “respectable” argument really comes into play? You are facing a Minister who says, “I want to do something”. Your initial instinct is to say, “No, that is not acceptable, because it’s against the convention”, or whatever else it may be. Then you are faced with the question of how you resolve the difference between you.
Victoria Prentis: That goes to the very heart of what we do as law officers. In an ideal world, we would be consulted early in the formulation of a policy or a piece of legislation, for example. If we are, we can set out very clearly what the legal position is, what would be a proper basis for an argument and what, frankly, would not. We are able to give our legal advice in that setting, if you like. It is not for nothing that my predecessors—there are some distinguished former law officers on this committee—have alluded to the fact that you are often unpopular as a law officer. You have to be able to say no when necessary.
The Chair: Yes.
Lord Keen of Elie: In a sense, the Attorney has covered the points that I was going to raise in that context with regard to respectable legal argument. It is a final test, surely. It is not the first test you apply when presented with a piece of proposed legislation.
Victoria Prentis: No. It is a test that can differ—I accept that—in different contexts. There may be issues that we should properly bring before a court—in an area where there is real legal uncertainty, for example—but in other areas the law may be clear, so the test is a much higher one. It varies from issue to issue, as I know you know very well.
Q6 Baroness Finn: I want to pick up on the point about the legal advice being cautious or solution-based. Part of the criticism when I have been in government is that the legal advice was often very full of why one could not go ahead with a policy and that you would have the legal problem of X, Y, or Z. I think there was a desire—if this sheds some clarity; I would be interested in your view—that the legal advice should perhaps seek to find a way around some of the legal obstacles and be more constructive than just trying to prevent something happening. When I first started, there was very much a feeling that the legal advice was busy saying why policies could not go ahead. For example, if you worked for a newspaper and were told that you could not print something, the lawyers would then seek to work out a way in which you could say it in a legally possible way. Would that be your view?
Victoria Prentis: That is a very interesting way of describing it. Government lawyers are also civil servants—they have their obligations as lawyers and separate but complementary obligations as civil servants—who give really good and really useful legal advice to government. I am very proud of the work they do.
In my experience, which has been in government since 1997, government lawyers are very keen to find solutions where possible. That does not mean working backwards, if I can put it that way, from, “Well, you can’t do this, but you can perhaps do the rung immediately below it”. I prefer to view it as a collaborative process within government. Government lawyers are often embedded with their policy clients, the Government. They understand them and the policies that drive the Government very well, in my experience, and they are able to get involved right at the inception of a policy—that is what makes the job so exciting and unique, in my view—and say, “You can’t do it that way, but you could start from here and do it this way”, and then assist the policy client throughout the evolution of the policy to a place of legal propriety.
That is slightly different from being presented with a specific ask for your legal opinion: “Is this a respectable legal argument or not?” The two may come together, but they are usually slightly different starting points.
Lord Stewart of Dirleton: Of course, the framing of prospects in the terms of respectability tends to be accompanied by an expression of prospects expressed as a series of percentages. All lawyers in practice are faced with the difficulties posed by clients who are unfamiliar with legal complications and wish to have their prospects resolved into or abstracted away into terms with which they find it easier to grapple, such as percentages. It is always a matter of abstraction. It is always a matter of expressing things that are not susceptible, in many cases, to such precision in terms that have the appearance of precision, and that can be misleading.
The combination of the bar of respectability and the percentage breakdown with which we are presented by officials and occasionally by external counsel, together with the opportunities the Attorney speaks of to mould policy from its inception into terms that would ultimately be acceptable to the court, all assist in the process of making sure that the Government present their case on the strongest possible legal basis.
A further point on the Lord Chair’s point in relation to the views expressed by a former Attorney General is that we have to bear in mind that law advances by testing propositions in court. As we look back over legal history, we find that propositions that are now widely accepted were controversial at their commencement. That is how law works. We cannot stand still in relation to a changing world and changing circumstances.
Michael Tomlinson: May I add briefly to the point Baroness Finn rightly made about being solutions-focused? The early conversation that the Attorney was talking about is critical to making sure that it is not just, “No, you can’t do that”, but that you are having a genuine, grown-up, proper discussion about to how to achieve the aims and objectives, but doing it in a lawful, sensible and proportionate way.
The Chair: It could work through that ,first, you say no, and then you are asked to find a solution. You propose a solution. Then the question is: is that one which you can respectably proceed with?
Michael Tomlinson: I am sure there are series of steps that can be made and the example you give is a very good one, but the key as far as I am concerned is to ensure that that approach is made early so that you are not, as it were, at the door of the court when these decisions are having to be made.
Lord Anderson of Ipswich: I should declare an interest as a barrister who has done very many cases for the Government Legal Service in the past. Might I echo, Attorney, what you have said about it and the high praise you have given? I have always found it an admirably professional body of people. Speaking personally, I have no difficulty with the respectable legal argument test, or indeed with your very helpful bands of likelihood, 30 to 50, 50 to 70 and so on. They seem to me to reflect very much what it is possible for a lawyer to say. Indeed, it is interesting to see people now advising private clients and adopting the same bands.
Victoria Prentis: In a similar way, I have noticed that.
Q7 Lord Anderson of Ipswich: There is sense in them. My question, after that very flattering bit at the start, is whether you think there is any category of cases that should be subject to a more stringent test. I am thinking, for example, of decisions to authorise armed conflict or perhaps decisions where there is a risk that somebody may be exposed to criminal liability. It might be thought to be a bit insouciant to embark on courses of that kind simply on the basis that the legal argument is respectable. I do not think I saw in the guidance any category of cases to which different words might apply, but it may be that in practice they do.
Victoria Prentis: I think that any decision to go to war or to engage in armed conflict would have to be taken very seriously by any Government, and I am sure is taken very seriously always by any Government in this country.
I am not sure that changing the test—this is one part of your excellent report that I was not sure I agreed with—and codifying the type of cases would really help with that decision. I am absolutely certain that Attorneys who have to assist a Government in deciding to engage in armed conflict would take their responsibilities particularly seriously. I have no doubt about that. I still think the test, in which I accept there is inherent flexibility, is sufficient, because the Attorney can balance all the other considerations that might need to be borne in mind—the need for humanitarian intervention, for example, or the speed of response. I think the Attorney would, within the confines of the current guidance, be able to make that decision properly.
Lord Anderson of Ipswich: It was a particular point that came up with one of our former members, who was Secretary of State for Defence during the Kosovo War. He was faced with the problem that his military advisers were saying that we needed to bomb a particular building in a city, and he was very worried as to whether he could do that compatibly with the rule of law. That is where he turned for advice, and the advice he was given was that it was. He was heavily dependent on that, and he made it very clear in our meeting when this was discussed how crucial to his decision the legal advice was before he could authorise the activity to take place.
Victoria Prentis: I am absolutely certain that I and my predecessors would take our responsibilities in that regard very seriously indeed.
Q8 Lord Falconer of Thoroton: I would like to apologise to the Attorney, the Solicitor and the Advocate for being late. I will also say how very much I agree with what the Attorney has been saying about the quality of the Government Legal Service. I was a law officer and thought it was absolutely excellent and very, very sensible. The debate we are having about what a respectable legal argument is is almost at the core of a good or a bad law officer, in a way. It is what is respectable.
Just picking up what Lord Hope has said, the Kosovo experience involved saying whether it was okay to target the suppliers of energy in Belgrade, which would have a big effect on the supply of electricity to hospitals, for example. You cannot say that as long as it was arguable, even although you think it is wrong legally, such targeting would have been allowed legally, could you?
Victoria Prentis: I am very grateful for what you have just said, not least because I was one of the junior lawyers who instructed you once, or who assisted you when you were a law officer.
Lord Falconer of Thoroton: I remember you well and you were absolutely excellent.
Victoria Prentis: I accept the point you make. These are very difficult decisions. However, it is the duty of the law officer—and, if I may say so, I saw you do this—to set out the legal parameters. You set out to your clients, “Obviously, armed conflict is not normally lawful unless there is a reason why”, which is customary international law or UN law, and you set out the parameters of what is permissible and why. You set out the level of clarity you feel about the advice you have given, but you make it quite clear how strong that advice is and what you feel about the strength of those arguments. Then you assist your client, who is well known and trusted by you, you hope, the Defence Secretary, the Prime Minister and others, possibly in the NSC or other Cabinet committees, to make these very difficult decisions. Some of their decision-making will be lawful, and you have to explain what the law is and how strong the case is, but some of those decisions will be humanitarian, frankly.
Lord Falconer of Thoroton: In relation to the example given, if the Attorney, who was then John Morris, a brilliant Attorney, had said, “It’s not lawful, in my view”, is it not the position that the Government could not do it? Sorry. Should I repeat the question?
Victoria Prentis: Yes, I am sorry.
Lord Falconer of Thoroton: Not at all. The Attorney at the time was John Morris. If he had said no, and from time to time he did say no to particular targets, the Government could not do it.
Victoria Prentis: That is the law. You know that very well and so do we. Even though I would love to get into specifics of advice that you and we have given, you know that we cannot, but yes, of course our job is to say no when it is necessary.
Lord Falconer of Thoroton: I am saying more than that. I am saying that if the Attorney said no, which he did in relation to some of the targets, the Government would be obliged not to do it. The way you are putting it is, “If he says you can’t do this legally, they still might do it”.
Victoria Prentis: No, that is not the way I am putting it. I am agreeing with you.
Lord Falconer of Thoroton: I misunderstood. Then there is the wider thing about respectability. I completely see the utility of a legal argument that might be quite a bad one but is respectable being one that might be quite legitimate to pursue—for example, when there is a damages dispute going on between the Government and a private contractor. However, there are certain things in the public eye or that give a sense of the reputation of the Government—do not comment on the particular case—where one is dealing with whether one should withhold documents from a public inquiry. That is something where simply having a respectable legal argument, which might be wrong, would not be appropriate. Do you agree with that?
Victoria Prentis: I cannot comment on that. You know that.
Lord Falconer of Thoroton: You obviously cannot comment on the particular case, but what you are saying, which I strongly agree with, is that what constitutes respectability depends on the context. I would be keen for you to give some indication to the committee of where the difference is between using military force on the one hand, and what might be properly viewed as a commercial dispute on the other hand, which would be very different.
Victoria Prentis: Yes, I do think that the weight that should be attached to the test can be different in different circumstances. Although I think we would enjoy discussing specifics very much, we all accept that we cannot. Yes, armed conflict is absolutely on one side of that divide, and we have discussed the reasons why with Lord Anderson. Taking people’s liberty away, which Lord Anderson’s second point, is very serious too.
On the other side, I would probably stick to cases where the law needs clarification, where there is genuine uncertainty on a legal issue and it is proper for a litigant—in this case, the Government, a well-resourced and well supported litigant—to take a matter to court, where the argument may look on the surface to be a less strong one but is nevertheless perfectly properly advanced.
Q9 Lord Thomas of Gresford: What role do you play in advising whether a Bill should be subject to a statement under Section 19(1)(a) or 19(1)(b) of the Human Rights Act, and who advises on the content of the ECHR memoranda that accompany Bills?
Victoria Prentis: The short answer is normally departmental lawyers advise on the content of the statement, and normally the Section 19 statement is signed by the Minister promoting the Bill. When a matter is controversial or we think there may be a contravention of the convention, we in the Attorney General’s Office are very likely to be consulted. We then work with the departmental lawyers, but ultimately the preparation of that memorandum is a matter for them, and the signature on the Bill is a matter for the Minister.
Lord Thomas of Gresford: There is obviously a clear distinction between 19(1)(a) and 19(1)(b), because in 19(1)(b) it is contemplated that you will breach the Human Rights Act in some way. Is there any machinery whereby the 19(1)(b) decisions come to the law officers?
Victoria Prentis: With respect, I do not accept that characterisation of Section 19(1)(b). If we use the Section 19(1)(b) statement, it does not mean that we believe the Bill to be incompatible, and it may well mean that we would mount a very robust defence if challenged legally on the issue.
We—we being the Government; as a former civil servant I have said that in all my periods in government—and previous Governments have, on more than one occasion, on the basis of considerable advice, used a Section 19(1)(b) statement. Tessa Jowell used it for the Communications Act. In that case, another state had lost a case before the European court, which went against what the Government here wished to do. I am sure that advice was obtained from government lawyers at that time, and it was decided nevertheless to proceed with the Communications Bill on the basis of the Section 19(1)(b) statement. The Bill went through, and the Government were challenged in court and ultimately won that challenge.
I do not accept the characterisation that a 19(1)(b) means that we are contravening the ECHR or other law. It just means that we know that a challenge is likely but that we will defend ourselves.
Lord Thomas of Gresford: I am not suggesting that, but surely you would not leave it to departmental lawyers to determine a 19(1)(b) issue, would you?
Victoria Prentis: I am sure that in the case of a Section 19(1)(b) statement, the departmental lawyers would be in very close contact with me and my office.
Lord Thomas of Gresford: It would go to the top, in other words.
Victoria Prentis: If there was a real concern about compatibility, I would expect it to come to me. However, most Section 19 statements are dealt with by departmental lawyers in the normal way, but that is because they are Section 19(1)(a) statements.
Lord Thomas of Gresford: I did ask who advises on the content of the memoranda.
Victoria Prentis: Again, in the vast majority of cases for Bills, that is the departmental lawyer. If the matter is controversial or there is a real concern about whether to use the Section 19(1)(b) statement, we in the AGO—me, the other law officers and our officials—help.
Michael Tomlinson: The Attorney very kindly delegates to me the privilege of sitting on the Parliamentary Business and Legislation Committee, which obviously deals with legislation coming through. Before there is an ECHR statement, there is, within the body of papers that come before that committee, a legal issues memorandum, which invariably involves a discussion between the department and the Attorney General’s Office. Even before we get to the point of a statement, there is engagement with the Bill team, the department, and the lawyers in the Attorney General’s Office.
Lord Thomas of Gresford: That is interesting. You are saying that the issue would cross your desk?
Michael Tomlinson: No, I am not. It would not necessarily pass my desk. It passes my desk at the moment I enter, or hopefully in advance of me entering, the committee. No, I would expect that to be dealt with at an official level, as it would be in the ordinary course.
Q10 Lord Strathclyde: You have kindly pre-empted a question that we were going to come to about the Parliamentary Business and Legislation Committee, which I regard as being an important part of the framework before a Bill comes before either House or both Houses. What steps do you take to ensure that rule of law implications are considered before the Bill is introduced? Obviously there is the Parliamentary Business and Legislation Committee, but what happens before that in the discussions with the Bill teams and individual Ministers? Ultimately, do you feel that your advice is taken most seriously—I am sure the answer is yes—and that you are not overruled, so that you virtually have a veto on these sorts of issues?
Michael Tomlinson: The short answer to your latter point is absolutely yes. It does not just feel like a veto; it is, de facto, a veto. It is a very serious committee chaired by the Lord President of the Council, who, as you know, takes her role incredibly seriously. I sit there as the Attorney’s deputy—I think that is traditional and has been the case for as long as I can remember—and the Advocate General sits there in his own right, and it is absolutely right that the law officers are properly deferred to and consulted.
You asked at the start of your question about events before getting to committee and in the run-up to that, especially where legislation is difficult. There are often questions of consent for retrospection, for example. That is quite often where our role comes in. Is it right and appropriate that the presumption against retrospection in any Bill should be overturned or overruled in this particular circumstance? These are issues that we grapple with well before we enter that particular committee room.
Lord Strathclyde: Thank you. That is very helpful.
Lord Stewart of Dirleton: Before we before we get to the door of the committee room itself, I would say that the more chance there is that a Bill’s provisions will be controversial, the earlier Bill teams will grapple with it and involve the law officers. If necessary, our advice will be the apex of a pyramid that from its base begins with officials but will include external counsel.
To the Solicitor’s point about the weight the committee ascribes to the law officer’s view, on a number of occasions we have had to make it clear to departments that their Bills are not in an acceptable form, and the committee has acted on that and Bills have been pushed back into later on in the session. There is no doubt in my mind that the scrutiny that that committee provides over legislation is not only active, but meaningful.
Lord Strathclyde: That is very reassuring.
Q11 Lord Anderson of Ipswich: I was just trying in my own mind to map the 19(1)(b) jurisdiction on to your own legal risk chart, which features in your Attorney General’s guidance. I entirely accept the points you make on the Communications Act 2003. It was quite marginal and, in the end, it turned out that you were right and it was compatible. I assume that might have been a medium-high risk of challenge, perhaps in the 50 to 70 range if you were applying the current guidance.
With regard to a 19(1)(b) statement, I assume that it might have been a case in the next category, where there is a 70 per cent chance of successful challenge, but you have at least a respectable legal argument. Is it feasible that a 19(1)(b) statement might also be compatible with the very last category, in which it is said that no respectable legal argument exists to justify the decision, policy or, in this case, the clause of the Bill? Is it possible that any of those three categories might be the explanation of a 19(1)(b) statement, or is the last category definitively ruled out in all circumstances?
Victoria Prentis: I would not want a Bill to proceed if there were no respectable legal arguments that we could advance before a court that it was lawful.
Lord Anderson of Ipswich: And if it did proceed, would that be a resigning matter?
Victoria Prentis: That matter has not arisen. Lord Keen could perhaps tell you more about that than I could. I feel quite confident in my ability to give clear legal advice to this Government, I feel quite confident about the way that legal advice is accepted, and I really do not think the matter arises. The Government do not want to put forward legislation that is improper.
The Chair: We will move on to a different topic: the question of advice being disclosed outside government.
Q12 Lord Thomas of Gresford: We said in our own report that in exceptional cases perhaps the advice should be disclosed. What is your view? Are there any circumstances in which you would authorise your advice being disclosed outside government? We all remember the conflict over the advice of Lord Goldsmith on the Iraq war.
Victoria Prentis: We do. I am very reluctant to disclose legal advice generally, actually, but particularly legal advice that we give to the Government. It is very important that the Government benefit from free and frank advice. I am quite sure that if we were to share that legal advice, in most cases that would have a chilling effect on our ability to give the clarity of advice that we would wish, and it would affect the Government’s ability to litigate, which I would want to do in the generality of cases.
However, there have been some exceptional cases, once partly stemming from a leak, once because of a humble Address where legal advice had been disclosed, and one other case where it was decided that legal advice was needed. If a matter is genuinely constitutionally very important, I can see an argument for the Government’s legal advice, a legal summary, being prepared. That is slightly different from advice that the law officers may have given earlier but that, of course, ought to reflect that advice and be a summary of it.
I can see that could be appropriate and is appropriate in some cases. We had the Windsor Framework to consider, where the Government did provide an explanation of the legal position, which was helpful. I suppose the argument traditionally is in cases of armed conflict where it might be necessary to provide legal advice. I would rather not give a definitive answer on that now, except to say that I am sure that any future Attorney—or me, if in post—would consider whether that would be helpful on a case-by-case basis.
Lord Thomas of Gresford: You will remember that the officer in command at the time of the Iraq war—he is a member of this House—refused to move unless he had definitive advice from the Attorney General that armed conflict was lawful in the circumstances. In a situation like that, which gave rise to a great deal of controversy, would you agree that the advice should be disclosed?
Victoria Prentis: In that case, the advice was disclosed, so there is no point in relitigating that now or here. I can see that there are very exceptional circumstances where it might be appropriate, but I feel very strongly that, normally, government legal advice should be protected in the same way any other relationship between lawyer and client is respected. It is very important that we as law officers and the Government Legal Service are able to provide really clear and frank advice. I cannot emphasise that enough. However, I accept that there can be very exceptional situations where that is not the case.
The Chair: Would the need for public confidence play a part in that?
Victoria Prentis: It might do. The very rare occasions have included public inquiries, for example, where it has been deemed wise to release government legal advice, sometimes a long time after the event, when you want to give the fullest possible picture to an inquiry.
Lord Thomas of Gresford: Do your colleagues have the like view?
Michael Tomlinson: My view is that the Attorney’s advice should be almost never to disclose. I think the Attorney is absolutely right and I agree entirely with what she says, particularly her comment on the chilling effect. We can all imagine scenarios where we are advising clients as lawyers, and it would be completely inappropriate for that advice to be disclosed. It is no different in this scenario. There is a real chilling effect if there is a prospect of advice being disclosed, and I strongly agree with what the Attorney has said.
Lord Stewart of Dirleton: I agree with my colleagues, but I agree with what you said, Lord Chair, about the matter of public confidence. I have not advised, and hopefully never will have to advise, in the awful circumstances of committing the Armed Forces of the Crown to conflict, but I fully appreciate that, in such circumstances, were such an awful step is contemplated, the disclosure of the legal basis upon which the Government act ought perhaps to be made public in order that the public be reassured.
The Chair: Yes. We come now to the different topic of devolution. Both the Attorney and the Advocate General, and possibly the Solicitor, have a part to play in decisions about devolution.
Q13 Lord Foulkes of Cumnock: Yes. This is another kind of conflict in some ways, I suppose. We want to explore what role the UK Government—particularly the law officers, and very particularly the Advocate General—have in relation to particular areas. If there is expenditure by a devolved Government, such as Scotland, which is clearly ultra vires—if I have got my Latin legal term right—and outwith the powers devolved to them, what powers do you have?
Lord Offord is very strong and very powerful in his words, but the action does not necessarily follow. I will just take one specific example. The Scottish Government are spending a significant amount of money on a Minister for Independence, when there is clearly not going to be a referendum, when constitutional matters are not devolved to the Scottish Parliament and Scottish Government, and when clearly it is a political campaign. UK taxpayers’ money is being spent on 20 UK civil servants to support that Minister. Surely you must have some powers as a law officer to intervene in that and to take some action against expenditure that is clearly improper.
Lord Stewart of Dirleton: Our role is to patrol the margins of the devolution settlement and to do our best to ensure that the devolved Administrations act within the terms of their competence. The example you give is a good one. I think it would be wrong to characterise Lord Offord’s position as one of impotence in the circumstances. He has explored the matter politically. That and other matters relating to the vires of Scottish Government expenditure come across my desk on the basis of closely involved work not only with legal officials but officials superintending my office, and we look very carefully at it. It is also open to me to raise such matters of my own volition, as I have done.
The position, therefore, is that the manner in which the Scottish Government or other devolved Administrations choose to spend the money that they get from central government is first and foremost a matter for them, but where they exceed their responsibilities we can step in. To give a recent example of another matter that has interested your Lordship, the activities of a devolved Administration presenting civil servants in a sense as ambassadors for that devolved Administration or acting in the capacity of embassies, I have looked at the facts and circumstances applying, got a clear indication of what those are, and sought to act accordingly.
On the embassies point, the FCDO now takes a far stronger line in seeing to it that there is no risk that our overseas partners might inadvertently be left with an inaccurate impression of the limit of a devolved Administration’s authority. I understand that a recent initiative of that sort by a devolved Administration to the European Union was accompanied by His Majesty's Government’s Ambassador to the European Union to make sure that there was no confusion between the respective roles of Westminster and the devolved Administration in question.
Lord Foulkes of Cumnock: The Government are to be commended on that. You, your colleagues and the Foreign Office or Foreign Secretary made it absolutely clear, and I think that has clipped the wings of Angus Robertson very effectively. That is why I did not use that as an example, because I think you have done that.
The expenditure on civil servants is an even more glaring example that is causing a great deal of concern among people, as you, Lord Keen and others who live in Scotland will know. People stop me in the streets in Edinburgh, at Tynecastle Park and other places that I go, saying, "Do something about this, George, for God’s sake. They are using our money improperly”. You should have the powers to do something about it. The Permanent Secretary sits in on Simon Case’s meeting every week with all the Permanent Secretaries. He is part of the Civil Service. Surely there must be some way they can be told that this expenditure is improper. There are other areas that are underfunded. Would you look at it again and see if something can be done?
Lord Stewart of Dirleton: I can give that undertaking. I may say I have the same experience as Lord Foulkes, although it is a while since I have been at Tynecastle. None the less, I have the experience of being challenged as to the apparent exceeding of its powers by Holyrood in relation to that and to other matters. I can give the committee this assurance that, although we work with the devolved Administrations in good faith and that overwhelmingly our engagement is positive with them at an official as well as a ministerial level, we are not blind to the possibilities that, for political reasons, they will seek to test the parameters of that devolution settlement, and we are on our guard to make sure that does not happen. It may happen inadvertently; it may happen as a matter of political priority for the devolved Administration in question.
Q14 The Chair: Can I ask you a question about the internal market Act? As you know, there is the possibility of an exemption against the market principles that patrol the internal market and require uniformity throughout the United Kingdom, and there are cases where exemptions have been given, where a devolved Administration wants to differ and protect its own position. Do you pay any role in that? I am not looking for specific cases, but do you police that as well as the devolution settlement, which is a separate issue?
Lord Stewart of Dirleton: It would certainly come before me. I had involvement with the Secretary of State for Scotland in relation to just such an issue quite recently, about which there was a considerable amount of disquiet in Scotland, in the licensed trade and in other sectors, exporters and manufacturers of products, in relation to the deposit return scheme. As a result of reconsideration by Scottish Ministers, that particular initiative has been pushed back in time, and I think the Secretary of State has sought to impress upon Scottish Ministers the desirability of operation across the United Kingdom internal market. I have not specifically been asked to advise about the legality of that particular instance, but the committee will be aware that my department, the Office of the Advocate General, scrutinises the activities of the Scottish Government carefully.
The Chair: Does this extend to your responsibilities? You have powers under the Scotland Act to intervene in certain circumstances, but do you keep an eye on this as well?
Victoria Prentis: Yes, very much so. I must say that Keith’s knowledge and experience is invaluable to our team. We discuss Scottish issues formally at least once a week at our law officers’ meeting, but when matters arise on a day-to-day basis Keith keeps us very well informed. As you know, we sit in the law officers’ corridor, the doors are very open, and we pop in and out and are very aware of what the others are advising on.
We take our responsibilities to all parts of the UK very seriously. The union is very important to us all, as is the protection of the devolution settlements. We were called as a group in Northern Ireland to the Bar there, which was a very rewarding experience, and has not happened before, I think, as a group of law officers. We make sure that we visit Wales often, Keith is obviously in Scotland every weekend, and we have had formal visits in Scotland too. This is a very important part of our work.
Lord Stewart of Dirleton: This existed prior to the Attorney and the Solicitor General coming into their office. The same close consideration to devolved matters was given by the Attorney’s and the Solicitor’s predecessors.
Q15 Lord Thomas of Gresford: Has the UK ever instituted litigation against any of the devolved Administrations for acting unlawfully?
Lord Stewart of Dirleton: There have been a number of litigations, some of which Lord Keen appeared in for the UK Government. More recently, we have one case that is presently before the court in relation to Section 35 of the Scotland Act, which bears upon the Gender Recognition Act passed by Holyrood. The Lord Advocate, the Scottish Government’s law officer, approached the Supreme Court seeking guidance in relation to whether or not it was possible for the Scottish Government, independently of Westminster, to call for a referendum.
Since my time as Advocate General commenced, we have had the action relating to the compatibility of two Bills which the Scottish Government had taken through Holyrood. We took the matter to the Supreme Court in relation to the compatibility of aspects only of those Bills and were successful. Lord Keen, as I say, as Advocate General, had acted previously in relation to the continuity Bill matter.
Lord Strathclyde: You obviously commented before very briefly, but can you give us an update on the role that you play on the international stage, particularly to protect and promote the rule of law vis-a-vis Ukraine or anywhere else? My second question is about your attendance at Cabinet. Are there advantages in being there? I am sure there are. Perhaps more pertinent, are there any disadvantages in attending Cabinet?
Victoria Prentis: The Government take their responsibilities very seriously indeed as a leader, I hope, on rule of law issues and on the international rules-based order. As I said, we visited Strasbourg in February, and that was a good trip. I know that the Solicitor is making a trip—he and Keith can explain—to various international conferences, and it is quite right and proper that we do that.
Ukraine, as an appalling example of when rules and the law are not followed and relationships between countries break down, has of course been very high up our agenda. It is high up my agenda personally. My daughter used to live there, and partly as a result of that we have had a Ukrainian visitor living with us for the last 16 months and have welcomed a large number of her family and friends to our neighbours. It has become a very big part of my home life.
It is interesting that it has also become a very big part of my work life, as it was when I was a Minister in agriculture, because obviously grain is critical to the economy of Ukraine, and it has been a big part of this job. I have a close relationship with the Prosecutor General of Ukraine. I have met many Justice Ministers and others involved in the Ukrainian Government. I was fortunate enough to be able to visit Ukraine both before the war to see my daughter and earlier this year when I went to an international conference about the ways in which we can hold Russia accountable for its actions.
I was also able—this is important—to lay a wreath in Bucha almost exactly a year since the awful atrocities that took place there. I think we can all remember the pictures of that pit with 118 bodies in it. Bucha, a year on, was extraordinary. It was cleaned up. The beautiful white church had been freshly repainted. It had an exhibition of well-choreographed, although very disturbing, photographs of the atrocities, and the people and the priest were there to meet us as we laid a wreath to remember those who had been tortured and died.
The extraordinary thing for me, as a lawyer and a proponent of the rule of law—this is why the rule of law is more than warm words—was that some of the perpetrators of those atrocities have already been brought to justice; some are in prison and some have been used in prisoner swaps. The Ukrainian Government, which has 92,000 open war crimes cases at the moment, are prosecuting in a way that international bodies have deemed to be perfectly acceptable. They are prosecuting war criminals right now, in real time. This is useful both because it ought to affect the behaviour of troops on the front line if they know that if they behave badly they will be held to account for their actions, and because it shows that the rule of law really does matter, and that is what Ukraine is fighting for.
The Bucha trip was exceptional for those reasons, but our help and support for Ukraine is much wider. I talk to the Prosecutor General very frequently. We are working on what he refers to as his web of accountability, which is everything from the ICC, which we support financially and in other ways. We send them some very good lawyers; it is good that Karim Khan is a British lawyer, and we have a close relationship with them and want to support them. We are part of a core group that is discussing what form of international tribunal will be necessary in order to bring perpetrators to justice.
We are supporting very practically on the ground with the war crimes cases, 99% of which will take place in Ukraine. We have given the Ukrainians one of our most senior international judges, Sir Howard Morrison, to train their judges. He has trained over 100. I have met some of them. That work has been very well received. This is nuts and bolts stuff on how to run a war crimes tribunal. It is really good. We are also supporting with evidence collection. We are supporting with the full gamut of the justice system. We are supporting wherever we can. I know that many British lawyers are keen to get involved and give their time for free. Some of them have already done so. I know there will be many years of help that we can provide. So, yes, this is important to the Government.
Do you want to talk very briefly about your international travel, Michael?
Michael Tomlinson: There is also the Attorneys-General overseas territories conference, which happens regularly.
Lord Stewart of Dirleton: There is also the aspect of the desirability of contact between legal systems, between Bars and between law officers, in order to understand better the priorities and the imperatives that apply and to participate in the continuing development of law geographically and, indeed, as part of the historical process.
I may attend an International Bar Association conference in October. I was always slightly sceptical about these things when I was in private practice, when I would have had to put my hand in my pocket in order to attend. I appreciate, having left the world of private practice and seeing the way in which lawyers who do not enjoy the benefit of membership of a tradition as established as ours benefit from contact and discussion with and the approval of the British legal systems.
Victoria Prentis: On the membership of the Cabinet, I attend all Cabinet meetings. I am not formally a member. This is useful. It means that I know what stresses and strains my departmental colleagues are under and I am fully apprised of what is top of the Government’s agenda. It also, of course, provides opportunities around the edges of meetings for colleagues to have private words about what is concerning them. I do not think there are any disadvantages. I think it works very well at the moment. I try not to speak on non-legal matters, but occasionally an agricultural thought pops out.
The Chair: Baroness Suttie has particular interest in Ukraine.
Q16 Baroness Suttie: I was delighted to hear what you were saying about Ukraine. That is an incredibly positive role that you are clearly already playing. On a point of information for me, do you play a role in advising the FCDO and the Department for Business and Trade, following any discussions you have in other countries, about the state of rule of law in those countries?
Victoria Prentis: It is obviously a matter for an individual country to make its own Government and form its own decisions, but we provide some thought leadership, I think, which in fact is, in terms, what the Prime Minister has asked me to do in the Ukraine context. I do think that is a role for a nation such as ours, which has a proud and strong legal tradition. We have really good international lawyers who operate in many fora across the world to provide some thought leadership, while of course not telling other countries how to run their affairs.
I would be very happy to pick up particularly Ukraine with any member of the committee, because that is where the rule of law is very much at risk at the moment, but there are other areas around the world that we do not have time to go into.
Q17 Lord Anderson of Ipswich: I think I can address my question simply to the Solicitor General. You indicated at the start that you do the unduly lenient sentences and the consents to prosecute. My first question you might be able to answer very simply. What steps do you take to preclude government influence over your decisions? We have seen, if I may say so, the admirable statement made about the Carrick case back in March. Perhaps that is your answer, but anything you would like to add to that would be welcome.
In relation to consents to prosecute, sometimes Parliament requires the Attorney General’s consent to prosecute as a sort of additional check. I just wonder how useful that is in practice. Are there cases where you reverse the decision that the DPP has come to, or where it is marginal and it is a good thing that you have been involved?
Michael Tomlinson: Thank you for those questions. I do not exclusively undertake the ULS scheme. Where there is a constituency conflict or where, for occasional reasons, I am unavailable, the Attorney will step in. That is the advantage of having two law officers, frankly, because there will be constituency conflicts, and it is right and proper that I do not deal with those personally. However, the vast majority I do deal with.
I do not think there is the sort of pressure that you referred to. There is political pressure rather than government pressure. If there is a particular constituency case where colleagues are concerned and that has been raised with them, that is a huge pressure, and it is occasionally raised by the Opposition as well. I think those are the pressures, rather than government pressure per se. But it is very much not a political decision. It is very much a legal decision—a quasi-judicial decision, if you like. We are looking at it as lawyers and almost as judges rather than as politicians. Actually, I found it fairly easy to step back into my non-political role and almost step back into chambers, examine the brief and see where the merits lie or do not lie.
In terms of cases, I agree with the Attorney’s previous point. There will occasionally be times where it will be appropriate to test the Court of Appeal’s view, but only where appropriate. The Court of Appeal is very quick to comment, and comment quite robustly, where a case is before it and the Court of Appeal has not thought it to be worth while. That is on the unduly lenient sentences.
You mentioned consents to prosecute. I think there a strength and a benefit in the Attorney having oversight. They are cases such as under the Official Secrets Act, such as Terrorism Act offences, explosive substances and the like, some of which are more obscure than others. I think there is an advantage in the Attorney having an oversight of that.
Specifically, yes, I have occasionally come to a different view. I am bound to say that it is rare. More often than not, when the papers are before me, it is, dare I say it, relatively straightforward, but from time to time I have come to a different view and said no. My preference when that happens is to have a conference and to invite those who drafted the papers, whether in the CPS or elsewhere, to come into the AGO and we will have a conference and a discussion, but at the end of the day it is the Attorney’s and my decision. Yes, I have said no from time to time.
The Chair: We are right up against our time limit. You are busy people and we must release you on time, but thank you all very much indeed for your contributions, which have been extremely useful. I wish we could extend the discussion a bit further, but we obviously cannot do that. I bid you a good day. Thank you very much.
