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Corruption

My Lords, I agree with the noble Lord, Lord Soley, that these are not easy matters and I, too, welcome the opportunity that the noble Baroness, Lady Williams, has given us to discuss them today. We have rightly been reminded by my noble and learned friend Lord Lyell that in every jurisdiction in England and Wales and in Northern Ireland every prosecution has to meet a twofold test: whether there is a realistic prospect of a conviction, and whether the prosecution is in the public interest. It is on the second part that I shall speak briefly. Whether something is in the public interest is an old and necessary test. It is of course in the public interest that a wrongdoer should be brought to justice, if that can be done fairly, but there may be rare cases where there is an over-riding public interest in not bringing a wrongdoer to trial, when it will not be sensible to cut off the public’s nose to spite the public’s face. Such a case can be visualised—here I agree with the noble Lord, Lord Brennan—when grave damage to this country’s security were a prosecution to take place is seriously and insistently foreseen and warned against. It ought to be common ground that there must be provision for such a safeguard if we are going to deal with the real, dangerous world. The essential issue is who shall determine the matter, which is one of the most difficult constitutional questions that we face. My starting point is that somebody, however unenviable, must be empowered to do it. Whoever that is, he must be accountable to Parliament, if there is to be maximum trust or at least minimum scepticism. He will always need to act upon information given to him, which it will be his duty to test as far as is practicable; much of that cannot be disclosed, so there will always be a measure of distrust and scepticism. The trick is to find the solution that will provide the least disadvantage of that character. It is said that the Attorney-General cannot determine these matters, and the noble Lord, Lord Lester, will say, much more eloquently than I can, that to set aside all partisan considerations is more than can be asked of flesh and blood in the Attorney-General’s position. However, I disagree; I have seen it done, and I venture to claim that I have done it myself. I saw it done when Sir Michael Havers, as he was then, at the height of the Westland affair threatened to mount his own inquiry unless there was a proper inquiry into a certain troublesome matter. Such an inquiry was mounted, so he did not have to execute his threat. In my own time as Attorney-General for Northern Ireland, Brian Nelson was prosecuted for conspiracy to murder. He was a greatly valued Army informer who went wrong and conspired to facilitate that which it was his duty to obstruct. I had to ask where the public interest lay. I formally consulted Ministers who had an interest—as I was fully entitled constitutionally to do—about where they thought the public interest lay, and they, very properly, told me. However, the DPP concluded that a prosecution was essential in the public interest, and I fully agreed with him. Brian Nelson got 10 years. It can go the other way, and I experienced that too. There was a case in Northern Ireland where there was sufficient admissible evidence to prosecute for conspiracy to pervert the course of justice, but it was made clear to me, and through me to the DPP for Northern Ireland, that serious security considerations militated strongly against a prosecution. The director himself concluded, and again I agreed, that the over-riding public interest required no prosecution. I was able to go the next day to the House of Commons to volunteer a statement before one was demanded of me, which it certainly would have been. I told it all that I properly could, and it was clear to everybody that there was much that I could not. I had an arduous grill—very properly—but then the House moved on, and the matter never came back. I believed then and continue to believe that I am entitled to suppose that natural anxieties about the matter had been allayed; it could have come back so easily by any number of means before the House of Commons, but it never did. I hope that these illustrations are more relevant than egotistic. If accountability to Parliament is essential, how can some official, however immaculately untainted by political interest, achieve it? To explain any controversial decision the presence of a Minister will always be demanded in the Chamber. If not the Attorney-General, who should it be? If all the wretched Minister could say had to be prefaced with, ““I am informed that it was because of this, that or the other””, he would be eaten alive. There would be talk of organ-grinders, monkeys and so forth. Time presses; I wish only to say in conclusion that as to the BAE decision I have heard nothing to establish in my mind that the Attorney-General acted improperly, unconstitutionally or that his office should be stripped of its historic and very relevant role as guardian of the public interest.