If the Crown Prosecution Service consults him on such a prosecution, the Attorney-General has said that he will appoint an independent senior counsel to review all the relevant material and advise him on any prosecution. That is not unusual, as the Attorney-General often appoints senior counsel to advise on particular cases, and he will evaluate advice in the normal way.
But will he act on that advice and will the Attorney-General retain the right of veto on whether to advance a prosecution? Is it not as plain as a pikestaff that there is a clear and obvious conflict of interest here and that the Attorney-General should remove himself entirely from the process?
It is important to stress that these issues are wholly hypothetical at this stage. There is no file sent to the Crown Prosecution Service; there is no reference by the CPS to the Attorney-General; no independent advice has been sought and no one—including my hon. Friend—knows whether it will happen. A police investigation is still under way: neither I nor the Attorney-General knows whether it will lead to any recommendation for anyone to be prosecuted. The Attorney-General has made his position clear and it would not be right for him to stand aside from any involvement in the case. Indeed, as the Director of Public Prosecutions has said, the Attorney-General is
“entitled to be consulted about a case, and it is normal practice for him to be consulted in serious and complex cases.”
And as Lord Morris of Aberavon, a former Attorney-General, has said of the Attorney-General:
“At the end of the day, he and he alone is answerable to Parliament and there should be no question of this or any other Attorney-General stepping aside.”
On this issue, the Solicitor-General will know that there are three main criteria in the Attorney-General’s guidelines for prosecution. The third, and the most germane to this matter, is public interest. May I suggest that it will never be proper for the Attorney-General to consider the public interest since he is deeply involved in all of this? If ever there were a case of great public interest, this is it.
There are a small number of cases for which any decision to prosecute requires the personal consent of the Attorney-General or me. Parliament has made that an essential legal condition. If the hon. Gentleman has a problem with what Parliament has done, he, as a Member of Parliament, has the ability to do something about it. This is not a power that can be delegated by the Law Officers to a third party; it is not something that can be delegated. Furthermore, even in relation to those prosecutions for which the consent of the Law Officers is not required, the Attorney-General has statutory responsibility for the superintendence of the Crown Prosecution Service and is answerable to Parliament and to the public for its actions. Either the hon. Gentleman wants someone to be answerable to Parliament to deal with these questions or he does not.
In order to get this matter into perspective, may I point out to my hon. and learned Friend that, in all the time that I have been a Member of this House, there have been allegations—justified or otherwise—that those who have donated to political parties have received honours? The issue goes back many years, and for the life of me I cannot see anything unique about the allegations that are now being made.
My hon. Friend has greater experience in the House than I have, and he knows that these kinds of issues have been raised in the past. When the courts, the Crown Prosecution Service and the Law Officers deal with such issues, they have to do so on the basis of the evidence and the law. That is the basis on which such things should be decided, not on the basis of mere allegations.
Given that any future decision by the Attorney-General, a Member of the House of Lords appointed by the Labour party, on peers and honours will be highly controversial, and that it would follow two other highly controversial decisions—namely, his advice on Iraq, which appears to have changed, and his advice and decision on the al-Yamamah contract between BAE Systems and Saudi Arabia—is it not time for an honest and open debate about a change in the relationship between the Law Officers and the Government, so as to make them more accountable to Parliament and less accountable to the Prime Minister of the day?
I am not sure quite what the hon. Gentleman thinks that I am doing standing here at the Dispatch Box answering his questions, other than being accountable to Parliament. The fact that the Attorney-General and the Solicitor-General are answerable to Parliament for the issues means that we have to ensure that we are able to deal with them in an appropriate way. The Law Officers are answerable to the House. They are able to look at the issues from the point of view of Members of Parliament in relation to answering questions here but also, most importantly, to ensure that we make judgments based on the public interest, on the law and on ensuring that we maintain the integrity of the prosecution service.
I entirely accept that the Attorney-General cannot surrender his constitutional functions or abandon his role to someone else in this matter. Will the Solicitor-General provide us with further reassurance? In the unlikely event that the independent person appointed to advise the Attorney-General were to take a different view from that of the Attorney-General, would the Law Officers ensure that further advice was sought before a final decision was made? Will the Solicitor-General also confirm that, if a decision were to be reached in which there was a variance between the independent adviser’s view and that of the Law Officers, Parliament would be fully seized of the matter?
The hon. Gentleman is right that the Attorney-General cannot abrogate his constitutional functions. Going even further down the route of asking what would happen were a file sent to the CPS, which it referred to the Attorney-General, who took independent counsel’s advice and then had a view, would be getting into hypotheticals to an extreme. The Attorney-General has acknowledged that he could not simply rubber-stamp the views of counsel. Given his ultimate legal and constitutional responsibilities, he must take a view. I stress again that the position is hypothetical.
In answer to the last part of the hon. Gentleman’s question, the Attorney-General has said that if a decision were taken not to prosecute, he would consider at that stage how best to ensure that the basis for that decision was explained, including, so far as compatible with the interests of justice, making known what course counsel had advised him to take.