Tonge and Carlile on ‘the right of a private citizen to initiate a private prosecution . . ’ [Police Reform and Social Responsibility Bill]

• [Jul 14] Baroness Tonge (Liberal Democrat): MY Lords, this debate reminds me of those cycle races in velodromes where everyone waits for the first rider to break from the pack and start racing. I hope that not too many people will catch me up, but I expect they will. I am sure that a noble Lord sitting behind me will catch me up.

I will briefly run through once again the current right of a private citizen to initiate a private prosecution by applying to a senior district judge to issue an arrest warrant for such criminals as war criminals. We are not talking about ordinary crimes, but about very big war crimes committed against international law. This ancient, common right has belonged to the people of England and Wales for many years. It is a valuable safeguard against political interference by the Government. This is why I have objected so strongly to the proposed change in Clause 155, which could delay an arrest, allowing the suspect to escape, and could introduce political interference from the Attorney-General who might influence a decision of the Director of Public Prosecutions. The noble and learned Baroness, Lady Scotland, almost indicated this by linking the whole chain of command to the Attorney-General. I am no lawyer, but I thought that the Attorney-General was a Minister of our Government-an officer of the Government. The noble and learned Baroness was almost admitting that political interference could occur.

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Baroness Scotland of Asthal (Labour): My Lords, I am very happy to assist the noble Baroness. The Attorney-General has three roles, as many noble Lords may know. The first is to advise to Her Majesty the Queen, the Government and Parliament. The second-the Attorney of the day must do this independently-is to supervise and superintend all the prosecutorial authorities in this country. The third is to be the guardian of the public interest and the rule of law. The second and third roles are exercised entirely independently from the ministerial role. The Attorney of the day can be relied on to remain a stalwart guardian of the public interest and, if necessary, to challenge acts of Government and Parliament. Any Attorney worth their salt should do that without fear or favour.

• Baroness Tonge (Liberal Democrat): I thank the noble and learned Baroness for that explanation. I found it a little reassuring, although in the past I as an innocent layman felt that this did not always happen. The fear remains that there may be political interference if this ancient common right is taken away.

I must progress. As I have already said, this right has not been abused in the past. There have been only 10 applications in 10 years, only two of which have been successful. The only reason that I heard the Government give in Committee for introducing the change was that it might be abused in the future.

Lord Campbell-Savours (Labour): Should the noble Baroness not be asking whether the Attorney-General might ever in any circumstances have in mind a political position taken by the Government in determining his or her decision?

• Baroness Tonge (Liberal Democrat): I do not want at this stage to get into a debate on the Attorney-General. It would be to intrude into areas where I am not expert. There was a very famous case in the recent past where the Attorney-General was alleged to have been influenced by the Government. However, this is not why I want to speak tonight.

The clause worries me because of the debate around it. We must accept that there is a debate.

Baroness Scotland of Asthal (Labour): I wonder whether the noble Baroness would reconsider what she has just said. The noble and learned Lord, Lord Goldsmith, is not in his place. It would be a courtesy, if such an assertion is made, to ensure that he is present to respond to it.

• Baroness Tonge (Liberal Democrat): I apologise to the House, and I agree with the noble and learned Baroness. In fact, I did not make an assertion; I said that there were incidents in the past where, allegedly, that had occurred.

When we look at this issue, we begin to think-certainly, the people who lobby me in great numbers think-that the real reason for the change in the law was the incident relating to Tzipi Livni. The Foreign Secretary, for whom I have high regard, argued that in the case of Tzipi Livni, the law had been abused when an arrest warrant was issued against her. He stated that:

"She is an Israeli politician of great importance, and a strong advocate of the peace process".-[Hansard, Commons, 24/3/11; col. 1130.]

That may be, but he did not criticise the evidence against her contained in the arrest warrant which had been obtained by a private citizen.

Lord Carlile of Berriew (Liberal Democrat): I am grateful to my noble friend for allowing me to interrupt, and I am extremely surprised that we have not heard my noble friend on the Front Bench intervening in the way in which he intervened on my noble friend Lord Palmer of Childs Hill a few minutes ago. What my noble friend is saying is out of order, inappropriate and not related to the amendment. She is having a rant at Mrs Livni.

Lord Wallace of Saltaire (Whip, House of Lords; Liberal Democrat): I was considering rising on precisely that point. This is Report, and we are intended to stick very closely to the amendment. This speech is ranging very widely, much more widely than is normal on Report.

• Baroness Tonge (Liberal Democrat): Nevertheless, my Lords, this is an extremely important issue that shows the general public how our Government conduct themselves. It is important that these things should be said and put on record. I am not going to be silenced on the grounds that this is Report. Many other people have talked at length on other subjects.

Lord Wallace of Saltaire (Whip, House of Lords; Liberal Democrat): I am very sorry, but we are on Report, and there are rules of the House. I understand the passion with which the noble Baroness is speaking, but the rules on Report are rather tight, and there are other occasions on which one can make these points. I think the sympathy of the House is limited in this respect. We need to address the amendment, and that briefly.

• Baroness Tonge (Liberal Democrat): My Lords, this puts me in some difficulty because I wanted to contrast the way we had altered our law at the request of a foreign Government, which is how it is perceived, and how we plan-

Lord Carlile of Berriew (Liberal Democrat): Order! Order!

• Baroness Tonge (Liberal Democrat): I am not going to give way again. I must finish. We must contrast this action with what has happened in the past couple of weeks where Raed Salah, a Palestinian-

Lord Lucas (Conservative): I beg to move that the noble Baroness be no longer heard.

Motion agreed.

Lord Carlile of Berriew (Liberal Democrat): My Lords, I have only a few words to add. I am sorry that my noble friend Lady Tonge has chosen to disobey the normal rules of the House and has stormed out in a way which is not appropriate to noble Lords and noble Baronesses in this House. It is something that I, as a member of her party, feel very strongly about, and I hope that none of my noble friends would normally behave in that way. It is quite shocking.

I would say, and I was about to say in her presence, that she has completely misunderstood the role of the Attorney-General and the Director of Public Prosecutions. I was involved in some negotiations during the previous Government as a person who was keen to extend the cover of the universal jurisdiction. It was made clear to me as part of the package-there were other Members of your Lordships' House of all and no parties involved-that an absolute requirement to make acceptable the broadening of the universal jurisdiction was a provision of this kind.

The basic reason is that we have only one standard of prosecution in this country. It is a good standard, it is set out in the current version of the Code for Crown Prosecutors, and it is completely politically independent. There was a discussion as to whether the provision in Clause 155 should be applied to the Attorney-General-the noble and learned Baroness at the time-or the Director of Public Prosecutions. It was decided, precisely to emphasise the principle of political independence, that the Director of Public Prosecutions should be the person named.

Having said that, I absolutely agree with every word the noble and learned Baroness has said about the role of the Attorney-General. Indeed, I was fortunate enough to receive an e-mail that winged its way from sunnier climes, where the noble and learned Lord, Lord Goldsmith, is busily engaged in unavoidable other activities. I was very flattered to receive the e-mail. In it he said that he supports this clause and is opposed to the amendment, as he said with great eloquence in Committee.

Lord Campbell-Savours (Labour): I am sorry to press the noble Lord-

Lord Carlile of Berriew (Liberal Democrat): No, I am not going to give way because I think we have spent-all right, I will give way to the noble Lord because I like him.

Lord Campbell-Savours (Labour): I tried to take a very neutral position when I originally moved my amendment. However, it should be made absolutely clear whether the Attorney-General could ever be influenced by a political position taken by a Government in any decision that he or she might take, in any circumstances.

Lord Carlile of Berriew (Liberal Democrat): The noble Lord knows how much I admire him, so if I say that is a really silly question I do so in a spirit of generosity. The answer is that we in this Parliament-and the noble Lord has been in this Parliament a lot longer than I have-have to make certain assumptions. Those assumptions include what the noble and learned Baroness, Lady Scotland, the former Attorney-General, said to the House a few moments ago. The sanction for people-and Governments -who behave in that way is that they will lose the confidence of Parliament. The question that the noble Lord puts is so hypothetical as to be absurd, in my experience and, I believe, in his political life too.

I do not want to delay the House too long. All I really wanted to say about the amendment is that in Committee the noble Lord, Lord Pannick, achieved a superb deconstruction of the amendment, and he has done it again today. I do not really want to add anything to what he said, together with the support that he received from the noble and learned Baroness, and indeed the very cogent summary that we received from a non-lawyer, my noble friend Lord Palmer of Childs Hill-thank God we have non-lawyers who are prepared to speak in these debates. I close by simply saying that this clause from the coalition Government, which I and my noble friends usually support, has been introduced in a continuous thread from what was agreed by the previous Government. It brings a single high standard of prosecution to this country and one that can be changed, as it has been in new versions of the Code for Crown Prosecutors test.

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