Talk to the college of the Humanities

I am very grateful for this kind invitation from Anthony Grayling to come and speak here today. The study of History was my passion long before I became interested in either law or politics and the emphasis that this institution places on the study of the humanities in the round seems to me to be an immensely positive development.

In inviting me Professor Grayling asked that I should do something different from the talks I am usually requested to give which centre on some aspect of my responsibilities as Attorney General. Instead I will try to respond to his suggestion of talking about the political process and current politics more generally and what made me decide to have a career in it. When that is done we can have a discussion in which I would like to emphasise that I will be happy to try and answer questions on any topic that you may want to raise with me.

I think however that I do need to start by saying something about what I do as Attorney General as without this you will not have a context for my remarks.

The role of AG is undoubtedly an odd one in British politics. I am of course an MP and had been for 13 years before I got the office. I take the Conservative Party whip and support its programme in government.

But the AG is quite deliberately placed in his own distinctive niche. Or as my predecessor put it to me when I was first appointed-“you will do fine in the role Dominic as long as you remember that you must from time to time smile kindly at your colleagues and say to them “that is an absolutely brilliant idea but I am afraid it is ever so slightly unlawful.”

The role started out in the Middle Ages when the court system began and originates in the King’s need to have a lawyer to represent his interests in his courts and prosecute the occasional traitor.  My earliest recorded predecessor dates from 1243 and the first of whom we have a portrait   is in 1485-Sir James Hobart –in full armour and wearing a sword. The sword is fortunately no longer a requirement but the armour could still be very useful.

It was only in the 17th century that the post changed from being that of a courtier/retainer to a parliamentarian and member of the government. By the late 19th century it had acquired most of its present functions. For a brief period between 1912 and 1928 it was a full cabinet post-created to satisfy the irritation of Rufus Isaacs at not being made Lord Chancellor. This Cabinet rank was not a success. In 1924 it was alleged that Sir Patrick Hastings the then AG had been leant on by colleagues not to prosecute the editor of a radical newspaper for incitement to mutiny (which was in fact untrue) and it brought down the first Labour government.  The rule is that the AG now attends when required but this has not prevented further suggestions that Attorneys are subject to improper pressure or influence.

The core of my work is advising government on difficult issues of law. Most of the advisory and litigation work for government is delivered by about 2000 in-house lawyers – the majority of advisers are embedded with their clients in government departments and the litigators are mainly based in the Treasury Solicitor’s ice. It is fortunately only a small percentage of the work that has to be given to me or my deputy the Solicitor General to advise on, helped on any matter with a Scottish angle by the Advocate General for Scotland.  

The advice I give is confidential so I can’t go into the detail I would wish. But I can say that most of it concerns Constitutional law-particularly the issues raised by devolution, European law and Human rights law and international law and particularly the law of armed conflict. The two occasions that the fact I have advised has been disclosed were over the lawfulness of taking military action against Colonel Gadaffi to prevent him massacring the population of Benghazi and over the legality of humanitarian intervention in Syria in respect of the use of chemical weapons.

The point I would want to emphasise is that all actions of HMG just like the actions of all of us in this room have to be lawful both under national and international law. This is stated government policy, enshrined in the ministerial code issued by each incoming PM and reflected by some 13200 international treaties of which we are signatories. The problem remains that interpreting international law can be difficult and as my predecessor Lord Goldsmith found over his advice on the legality of taking military action against Iraq, very controversial.

In order to do my work I attend Cabinet and Cabinet committees when needed including the NSC. I will do this either because my advice is needed or because the subject under discussion is one where I want to understand the context as it is likely that my advice will be needed later.

My office also has a specific role in scrutinising draft legislation and clearing it before it is introduced into Parliament. We identify and can object to unjustified retrospective operation, excessive grant of powers to Ministers to make orders by subordinate legislation and we scrutinise a note produced by the department sponsoring the Bill on its compatibility with the ECHR.

My second role is as superintending minister of the CPS and the SFO and indeed of all prosecutions brought by Government departments or agencies in England and Wales. The CPS and the SFO have a combined budget of around £600m and have had to make savings of around 27.5% over four years. The DPP faces the task of managing a staff of some 7000 and maintaining efficiency in the prosecution of 800,000 cases per year. The Director of the SFO has a much smaller organisation but a high profile caseload that attracts a lot of attention- particularly in my experience when things go wrong.

As AG superintendence does not mean I run these organisations. I help negotiate their budgets with the Treasury, I answer questions on their work in Parliament, I meet regularly with their directors and am kept informed by them of successes and problems and issues that may be controversial. But they are independent and I am there to protect that independence from political interference. I do have some reserve powers to intervene and stop a prosecution if the public interest demands it, or indeed insist a prosecution takes place but this is a bit of a nuclear option if exercised against the views of a director. In practice the relationship between me and the Directors is now set out in a public protocol issued by my predecessor.

Parliament has by statute over the years required AG’s to give consent before certain prosecutions are brought. These are mainly terrorist related but the Explosives Substances Act 1883 covers everything from a super terrorist preparing a nuclear device to a 15 year old with an unhealthy interest in homemade pyrotechnics  produced in the garden shed.

The AG has a wide range of powers conferred on him by statute or convention under the rather grand title of “guardian of the public interest”. These have to be exercised entirely free of all party political considerations and without interference by ministerial colleagues. As there are over 30 of them I will spare you most!

I have the power to refer certain unduly lenient sentences to the Court of Appeal-what I did in the summer with the case of Stuart Hall.

I can bring contempt of court proceedings against individuals or organisations such as newspapers whose actions interfere with the course of justice. This was not something I had focussed on when I was appointed, but the twin problems of jurors failing to follow judge’s directions not to carry out internet research and a willingness to sacrifice all norms of fairness when reporting some sensational criminal cases by some newspapers has demanded my attention. It isn’t possible to have a fair system of trial by jury if papers behave in the way the Sun and the Mirror did in the case of Christopher Jefferies.

I can also apply to the High Court to request an Inquest or a fresh inquest to be held if the public interest requires it-something I have done in the Hillsborough case but decided there were no grounds for doing in the case of Dr Kelly.

I have powers to intervene in cases involving charities as I can act as their protector. With the arrival of the Charity Commission this role is much reduced but I have made references to court to get the law clarified in cases where the definition of the public benefit test has been in issue, in relation for instance to independent schools.     

I have powers to appoint special advocates and amicus curiae to help the court and the process of justice.

Finally in this list I would mention that I have the power to apply to have a person declared a vexatious litigant, I sign off Royal Charters by initialling the draft and I am the only person apart I think from the PM who has to ask the Queen’s permission to on holiday or any other visit abroad-a reminder that I am Her Attorney General holding office pursuant to Her warrant under the Great Seal and reinforced by a complicated oath to serve Her taken in front of the Lord Chief Justice and Her Judges.

Now this brief canter through my role may give an impression that I came to politics as a lawyer seeking a political/legal career-there is a long history until half a century ago of AG’s coming from the Bar and going on to become Lord Chief Justice. But nothing could be further from the facts. It is just I think that as a politician I have been unable to escape my professional past as a barrister.

I became interested in politics as a teenager. My school was 400yds from Parliament and as my father was a back bench MP I could slip over after school and listen to debates from the gallery. It was the Heath government and there were fascinating debates over entry to the EEC-with virtuoso performances from Michael Foot and Enoch Powell. As I had a great interest in History and I have now to admit romantic notions of the Parliament of the United Kingdom born of it I was gripped. Here was History in the making.

But interest in politics as a career only came later, at and after university. At one level I could pursue the romantic association with a Conservative political tradition going back several centuries. I was a member of the Canning club where papers on political and historical topics were read once a fortnight in term time. But the years I was at Oxford from 1975 to 78 were also years of crisis which even with our present problems still appear to me to have been more serious than those today. At the time we thought a whole way of life for our country was in danger of collapse. The economic crisis of the mid 70’s with its power cuts, industrial action and the intervention of the IMF, and the fact that this was taking place against economic problems abroad which were much less serious than our own, created a climate of anxiety about the country’s future and sharp debate about the policies that should be adopted to deal with it. The fundamental ideological differences between Labour and Conservative approaches were much sharper than today and were played out at every level of government and within universities and their student unions. As my fellow Oxford Conservative students campaigned in local elections, leafleted the Cowley Works of British Leyland at 6am to suggest to the night shift of skilled workers of the benefits of voting Conservative for the first time (which they did in large numbers in 1979), we felt, rather self-importantly at the forefront of a drive to revive our nations fortunes.   Even today I realise in Parliament that the generation that shared this experience is somewhat different in outlook from those who came after and whose formative years were under Mrs Thatcher’s PM ship.

In the 1970’s it would have been very unusual to make a career in politics-something which has of course since become common. I had decided to be a barrister and I concentrated on my conversion studies for Law and on getting taken on in chambers. But my political interests were maintained through the Society of Conservative lawyers and in 1982 I became a Borough Councillor in Hammersmith and Fulham.

This was a minority Conservative administration kept in office at the election by the Falklands factor and the conditional support of two maverick Liberals who disliked Labour marginally more than us. The Borough was at the earliest stage of  upwardly mobile change with a lot of deprivation and a growing ethnic minority community which was often the poorest.  I chaired the committee managing the housing stock and council/tenant relations and first found an interest in community cohesion and diversity issues.  I learnt much more from all this than debates in student groups at university on topics of conservative philosophy, because the translation of principles into the reality of their application is at the heart of politics-something I would like to return to a bit later in this talk.

But this is what confirmed my view that I found the process of political decision making, the debate around a problem and the selling of a policy and its implementation compelling and the beneficial results, when they occurred, fulfilling. It prompted me to apply for and get on the candidates list and I was selected in 1985 to fight an unwinnable seat in South London, Lambeth Norwood which took a large part of Brixton and was extremely diverse. I fought the seat in 1987, served on the Police Community Consultative Group over and after the 1986 riots and enjoyed the experience. I then thought that I stood a good chance of getting selected for a winnable seat in 1992, but politics is a lottery when it comes to selection for a seat and despite my efforts to apply for them it didn’t happen. So I concentrated on my legal career and kept up my political interests through the research committee of the Society of Conservative Lawyers. I have to admit that by 1997 I was very happy with my professional work and that married and with two small children the lure of a Parliamentary career was starting to wane. But I was unexpectedly selected for a safe seat three and a half weeks before the General Election and life has changed completely for me since. But I have never regretted the change. My wife made me promise at the time that I would give it up if she ever concluded I was bored and she admits I show no sign of it.

In practising politics I try to bring to it the benefit of my legal training and experience. I also-I hesitate to say it in the company of Professor Grayling, bring to it my viewpoint as a Christian and as a practising member of the Church of England and my philosophical views as a Conservative. But the reality of democratic politics is that it constantly requires compromise if a degree of agreement is to be achieved. It is that process, carried out through debate which is so fascinating and capable of being productive.   

Politics and for that matter politicians in our country today are however in some trouble. Although the public have always been healthily cynical about both, it’s impossible to avoid the conclusion that at present this cynicism is at a very high level. The expenses scandal has helped crystallise a view that politicians are in it only for themselves, enjoying a comfortable existence at the taxpayer’s expense, whilst engaging in a polemical game characterised by point scoring in the relentless search for a vote winning formula at the next election. There is a lack of trust that politicians intend to fulfil promises made in manifestos at all, let alone that they are capable of doing so, and this is inevitably enhanced by the existence of coalition government.

There is also, as I can see from my mail bag, a strong sense of alienation from the political process which is particularly but not exclusively marked amongst certain older sections of the population. It’s the ghost in the room of British politics-a section of society which previously drew comfort from having helped shape the country and from its belief that the country broadly reflected its values, now convinced that all is irrevocably changed and that the future is one of doom and gloom. This centres round immigration and the pace of change, anxieties about population growth and urbanising landscapes, changes in values such as that highlighted in the recent debate on same sex marriage, the state of the world and the decline in our national power and influence over world events and a belief that voting hardly matters any more as all key decisions are now made by supra national authorities or unelected judges without reference to their democratic or collective rights.

There are also other groups who share an alienation from mainstream politics for different reasons-younger voters troubled by the gulf between political ideals and the reality and some ethnic minorities who feel excluded from the system by cultural barriers.

While opinion polls show that the key determinants of voting at elections remain judgments on the economy and the way it is being handled, this undercurrent of dissatisfaction may well explain falling voting numbers.  In its place there is a marked rise in single issue or narrow focus politics  such as we have seen over GM crops and fracking for example, or the restricted areas of concern around immigration and national identity and autonomy raised by a Party such as UKIP.

Yet as my Oxford college contemporary Matt Ridley has pointed out in his book the Rational Optimist, a close analysis of the quality of life enjoyed by the population of our country shows that it is in almost every respect infinitely better than for earlier generations and that the prospects for the future are, whilst not without many challenges which must be addressed, viable and potentially good for ourselves and our children. But you would not glean this from my MPs mailbag or from reading the articles in many newspapers.

Our political processes are inevitably going to be imperfect. They are by international comparators unusual because they have developed incrementally and without revolutionary change. But as a Conservative I would argue there is much about them that is advantageous.

As a government minister and AG for example it is immediately brought home to one on appointment that in our constitutional monarchy you serve the public by serving the Crown. We take oaths of office to serve the Queen and to be sworn as privy councillors we have kneel in front of her and kiss her hand. This was something that irritated Tony Benn exceedingly as it smacked to him of feudalism and as he saw it, interfered with his direct relationship with the electorate to whom alone he felt he was answerable.  But such relationships are prone to being a bit nebulous-they offer the politician the luxury of considerable autonomy backed by claims that policies enjoy public support which is only occasionally tested. In contrast ours to the Queen are pretty specific. We are there to enable her to fulfil the terms of her coronation oath to provide good and quiet governance. We have to act lawfully and in accordance with the ministerial Code issued by the PM and civil servants are bound by this as well.  In a country with an unwritten constitution or at least one not reduced to writing in one place and enjoying no primacy over parliament and a government with a majority, such structures and conventions act as a subtle check on the over enthusiasm of governments.

We can see a similar pattern in the way Parliament operates. I am well aware that the public’s view of the parliamentary process is one of some bemusement, particularly if they only see Prime Minister’s questions. As Churchill described it, this is the cockpit of the nation, raucous and confrontational. It reveals nothing of what goes on elsewhere or at other times where the debate is likely to be more constructive. But there is a need in my view to improve the way Parliament does its work and particularly the manner in which it scrutinise legislation and the work of government and I am sorry that despite a number of attempts at doing this there is still a long way to go to make it more effective.

But what our Parliament does do well is to create a forum where majority decisions acquire legitimacy. Many think of Parliament as a place where the majority imposes its views by enacting legislation. Bur in reality its importance is rather that it provides a mechanism by which minorities are willing to tolerate majority decisions.  The possibilities of procedural obstruction, the role of the Lords as a reviewing and revising chamber, even the adversarial debate that tests policies and sometimes ministers to destruction, has the intended consequence of conferring legitimacy on the legislation passed.

At the end of the passage of a Bill, Royal Assent is given in a ceremony redolent of the theatre with the leaders of all the main parties dressed in ermine doffing their hats in assent as the Clerk of the Parliaments calls out “La Reine le veult”. Some of my more radical colleagues dislike all this as well. Indeed I remember one new Labour MP after the 1997 election questioning why there should be debates for the second readings of bills, as the then government’s enormous majority meant that the outcome was a foregone conclusion. But this is to miss the point. On the whole in this country enacted laws are not openly defied. As examples from as near as hand as Northern Ireland show it does not require many to destroy the basis of government by consent. We are fortunate to have a system which despite its flaws seems to me to be in this respect very resilient. It can help us all manage the processes of change in human affairs that takes place irrespective of the wishes of politicians. Indeed managing that change through making policy choices is what politics is about. Sometimes the solutions are obvious and easy. But often they are not.

Before I finish, I thought I might illustrate this final point by reference to one particularly controversial piece of legislation that has recently passed through Parliament, receiving Royal Assent this summer.  That is the Marriage (Same Sex Couples) Act 2013.

You will know that this Act now enables homosexual couples to marry.  Civil partnerships have, of course, existed for a number of years.  But this Act allows marriage and it enables marriage either through “civil ceremonies” or through religious ceremonies.  As to the latter, religious organisations that wish to conduct same sex marriages are now able to agree to do so.

This proposal generated a huge range of concerns from a variety of different groups on many issues.  There are those who thought that it was wrong, in principle, for marriage to be other than between a man and a woman.  There were others who considered that it was wrong to allow religious organisations to be able to conduct same sex marriages.  In particular, there were those who thought that – if some religious organisations were able to offer same sex marriages – then the law (in particular human rights law) - might force other organisations who did not wish to do so, to do this; but against their will.

There were concerns that some people might find themselves – contrary to their religious beliefs – required to conduct same sex marriages or, say, teach about same sex marriages in schools.

Thus there were a number of minority groups with very real concerns at what the majority were proposing.  It is of course right to note that there was a free vote in Parliament on this Bill , but the concerns mentioned above were concerns of groups in the minority.

The Parliamentary process and the debate and testing of the policy that was integral to this in my view undoubtedly conferred a legitimacy on the proposals that are now law.  Anyone who looks at the debates in Parliament can see how carefully the concerns of the minority were put and, in turn, responded to.  Even if in some cases the minority remained just that, and the proposal went through, there is value in the debate having taken place. 

Legitimacy can also flow from reassurance that emerges during the Parliamentary process.   That reassurance can come in various forms.  It can be legally binding reassurance, in the form of an amendment to make the position clear.  Or, there can be reassurance through Ministers undertaking to review a matter again in the future.  Or, I suggest, reassurance can come from hearing those who advocate the opposing argument – and hearing from them that they do, or do not, propose to act in a particular way.

There will be difficult questions in the future that Parliament will have to consider.  Prisoner voting is a very difficult issue on which there is a range of views.  But I am clear that Parliament is not only supreme in our constitutional arrangements; it is supremely well equipped as a forum to consider the difficult legal and political questions that this will give rise to, just as it did with the proposals for same sex marriage.

Thank you.

 

Dominic Grieve