Andreas Whittam-Smith: If the Lord Chancellor has intervened in the cash-for-honours affair, it is for good reason

If the No 10 crowd were convinced of their innocence, then the best thing would be to ask for a prosecution
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It was as if the Attorney General, Lord Goldsmith, had been stung by a bee. His close neighbour in the Government, Lord Falconer, the Lord Chancellor, referring to the cash-for-honours investigation, had told a Parliamentary Committee that the Attorney would play no role in the decision whether to prosecute. "Of course", Lord Falconer said, "the Attorney General would not interfere in the normal course of decisions being made."

Ouch! Lord Goldsmith immediately took up his pen and wrote angrily to the Committee to state that the Lord Chancellor is, "not in a position to give an assurance". No other minister, he added, however distinguished or senior, has the ability to bind the Attorney General in how he exercises his role.

Note that Lord Goldsmith wasn't just telling some ill-informed MP, or careless journalist, or law student that he was completely wrong, but the Lord Chancellor himself, who is responsible for the efficient functioning and independence of the courts. Indeed until 2005, Lord Falconer was also head of the judiciary. So he very well understands the Attorney's duties. The question is why did Lord Falconer find it necessary to say anything at all?

Because, I assume, he is thinking ahead. Suppose, he must have said to himself, that Lord Goldsmith, having been consulted by the Crown Prosecution Service, decided that no charges should be brought. What then? There would be a tremendous hue and cry. Public opinion would assume, fairly or unfairly, that the Attorney General had been protecting his patron. For Lord Goldsmith has no political following. Everything he has he owes to Mr Blair - his high position, his attendance at Cabinet, his seat in the Lords. "Favour repaid" would be the common assumption.

If one follows further into the future the likely consequences of Lord Goldsmith ruling against prosecution, then it can be seen that neither Mr Blair, nor Lord Levy, nor individual members of the Prime Minister's team would have achieved closure on the cash-for-honours allegations. They would forever be thought to have been guilty.

Rather than worrying about what time the police make their calls, they would be thinking about the consequences of being denied a trial. The result would be that the stain would never be washed away. People always remember. Paradoxically, in this situation, if the No 10 crowd were convinced of their innocence, then the best thing they could do would be to ask for a prosecution to clear their names.

Lord Goldsmith has thought ahead too, and believes he has the answers. If the Crown Prosecution Service came to consult him, he would seek advice from independent counsel. Then, if a decision were taken not to prosecute, he says he would consider at that stage how best to ensure that the basis for that decision was explained, including making known what course counsel had advised. This, he says, "would give greater confidence in the objectivity and impartiality of any decision".

If only. As Lord Falconer must perceive, owing to the Attorney General's track record his manoeuvres wouldn't provide any reassurance at all. The public would suppose this rigamarole was all part of the process of treating them as dupes.

The deeper issue is whether it really is Lord Goldsmith himself who is the problem or would any Attorney General have run into the same difficulties. Admittedly the office of Attorney General itself is full of anomalies. The holder is at once the Government's principal legal advisor and part of the system of justice. He or she is both a player and a referee. That is why the Commons Constitutional Affairs Committee has recently decided to take evidence into the functions of the Attorney. It proposes to examine his role as the government minister responsible for legal services including the Crown Prosecution Service and whether such a role conflicts with his duties as a member of the Government. Yet the office is an ancient one, going back to the 13th century, and its contradictions have generally been adequately handled.

However, as Lord Goldsmith probably doesn't realise, he is seen as somebody with form. He says he would take independent advice but he did so when advising Mr Blair on the legality of the Iraq war. As Baroness Helena Kennedy QC said in a GMTV interview: "The vast majority of lawyers thought the conflict without a second UN resolution would be unlawful." No second resolution was obtained. She went on: "It was interesting that out of probably only two lawyers who would have argued for the legality of going to war, one of those was the person to whom the Attorney General turned."

Indeed there are different ways of seeking counsel's opinion. The ordinary person searching for guidance wants an authoritative statement on a troubling question. He or she hasn't prejudged the issue. But sharper characters look for a barrister willing to give them the advice they wish to hear. And they know that counsel's opinion so obtained will serve as a cover in case of challenge.

More unfortunately still, Lord Goldsmith's recent decision to call off the Serious Fraud Office inquiry into allegations that BAE Systems had used bribery to secure its large contract with Saudi Arabia continues to have powerful reverberations. When I wrote about it before Christmas, no official judgement had been made whether Britain had broken the Anti-Bribery Convention to which it is a signatory. Now the international body that supervises the agreement has indicated its "serious concerns".

Nor did I understand at the time of my last comment that the Attorney General had been exaggerating his case. On 14 December he stated that the heads of our security and intelligence agencies shared the assessment that continuation of the investigation would cause serious damage to UK/Saudi security and intelligence co-operation. Now he says that the head of MI6 told him only that the Saudis might withdraw their co-operation if the Serious Fraud Office investigation continued and that they could decide to do so at any time. That is a very different matter. Even I, without being privy to a single secret, could have told the Attorney that.

Actually I think that the Lord Chancellor and the Attorney General understand each other only too well. The Chancellor sees that Lord Goldsmith has lost his authority and is no longer trusted. If this wasn't the closing months of an ancien régime, he would have been gone by now. And he surely will leave public life when his master, Mr Blair, departs. But if he stood in the way of a prosecution for the sale of honours, if it came to that, the Attorney would, because of his poor reputation, make matters worse. Lord Goldsmith, I believe, must realise at some level that this is what his colleague had in mind when he made his comments. That is why he felt as if he had been stung and reacted accordingly.