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The office of Attorney General is an ancient one. It combines legal administration and the provision of independent legal advice with the political duties of being a member of the Government. He or she is also superintendent of the prosecution services in England and Wales.
Recent events have called into question the sustainability of this divided set of responsibilities. First, the Constitutional Reform Act 2005 changed the status of the Lord Chancellor from being one of a judge, who took the judicial oath of office, to that of a Secretary of State who had a legal duty to protect the independence of the courts. This has left the Attorney General as the only member of the Government who was required to be legally qualified. The creation of the Ministry of Justice in May this year has also raised questions about the Office of the Attorney General, its functions, and the position of the office in the trilateral framework for the formulation and delivery of criminal justice policy in England and Wales.
Second, the office's role in three particular controversial matters have highlighted further concerns: advice on the legality of invading Iraq; potential prosecutions in the "cash for honours" case; and the decision to halt investigations by the Serious Fraud Office into BAE Systems. The evidence which we took relating to the BAE case was particularly instructive in showing the inherent tensions in the dual role of the Attorney General and in particular the sometimes opaque relationships with the prosecution services.
Our Report identifies inherent tensions in combining ministerial and political functions, on the one hand, and the provision of independent legal advice and superintendence of the prosecution services, on the other hand, within one office. Real and perceived political independence has to be combined with a role of an intrinsically party political nature in one office holder. This is at the heart of the problem. There is a lack of transparency in how each of these functions is carried out. We acknowledge the need for accountability to Parliament and the public for all of the duties carried out by the Attorney General, but believe that reform of the office is necessary, both in order to ensure clear lines of responsibility for particular decisions and to remove any credible allegation of political pressure. These issues were brought into sharp focus by the decision to stop the investigation in the BAE Systems case. We therefore recommend that the current duties of the Attorney General be split in two: the purely legal functions should be carried out by an official who is outside party political life; the ministerial duties should be carried out by a minister in the Ministry of Justice.
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