1 Introduction
1. The office of the Attorney General is an ancient
one, which has traditionally been at the junction between law
and politics in England and Wales. The office has not remained
static but has developed in order to accommodate the wide range
of tasks and functions of the modern Attorney General. Traditionally,
the Attorney General and the Solicitor General have been senior
barristers and Members of Parliament, with considerable experience
in the fields of both law and politics. All Attorneys General
were, with the exception of only the most recent two past Attorneys
General[1] and the current
Attorney General, also Members of Parliament who sat in the House
of Commons. In oral evidence to the Committee, Lord Goldsmith
was not even certain that he could be described as a "politician".[2]
This change has had a significant impact for the role of the Attorney
General as the traditional interface between law and politics,
and for the accountability of that Office.
2. Described by Francis Bacon as "the painfullest
task in the realm" the Attorney General has "multifarious"
roles. In a recent lecture, Professor Jeffrey Jowell QC summarised
the role as follows: "he is of course legal adviser to the
Government. Yet he is also a politician who takes the party whip
and a Minister who nowadays attends all Cabinet meetings. He superintends
various offices, such as the Crown Prosecution Service and a number
of judicial and quasi-judicial proceedings where he must decide
in the public interest. He may decide himself to bring civil actions
and prosecutions or refuse to prosecute and whether or not to
bring relator actions. He is also Leader of the English Bar".[3]
3. Professor Jowell stated that: "one set of
relationships in our democracy that has been subject to the most
dramatic alteration in recent years is between politics and the
law; the appropriate balance between those decisions which are
in the province of politicians and those which belong to the law
is one of the most fundamental question in all constitutional
theory and has great practical importance".[4]
4. Part of the framework where law and politics meet
is in the historic office of the Lord Chancellor, who has had
a duty to uphold the Rule of Law within Government. Recent changes
in the role and responsibilities of the Lord Chancellor under
the Constitutional Reform Act 2005 transformed the role of the
Lord Chancellor, and in doing so have brought the tensions which
are inherent in the multiplicity of the roles performed by the
Attorney General into sharp focus, and have raised several questions
about his constitutional role. The Lord Goldsmith has himself
commented on this in several speeches, specifically in relation
to his role in upholding the Rule of Law.[5]
5. At the same time, the Attorney General's position
has also come under scrutiny in connection with his position as
head of the prosecution authorities, as the Government's Chief
Legal Adviser and as a member of the Government. Particular difficulties
were identified in relation to the police investigation into allegations
about Cash for Honours and whether the Attorney General should
play any role in determining (if necessary) whether the Crown
Prosecution Service (CPS) should proceed with prosecutions. We
have already published a Special Report containing the correspondence
between the Chairman of the Committee, the then Attorney General
and the then Lord Chancellor on this matter.[6]
In addition, the Attorney General's independence has been questioned
as a result of a decision not to prosecute in the BAE Systems
case, and in relation to the advice he gave on the legality of
taking military action in Iraq.
6. Furthermore, recent changes to the machinery of
government, the division of the Home Office and the creation of
a new Ministry of Justice have also raised questions about the
office of the Attorney General, his or her functions, and the
position of the Office in the trilateral framework for the formulation
and delivery of criminal justice policy in England and Wales.
These factors combined have resulted in intense scrutiny of the
role and functions of the Attorney General, and subsequent calls
for the reform of that Office and role.
7. In the light of the considerable
recent changes to the constitutional arrangements for the maintenance
of the Rule of Law and the continuing commitment of the Government
to modernise the constitution, we decided to inquire into the
constitutional role of the Attorney General. We concentrated on
three specific areas:
- how the office works;
- the impact on the office of recent controversies;
and
- what options there are for reform.
8. We took oral evidence from Rt Hon Lord Goldsmith
QC, the then Attorney General;[7]
Rt Hon Lord Falconer of Thoroton QC, the then Lord Chancellor
and Secretary of State for Constitutional Affairs, and two former
Attorneys General: Rt Hon Lord Morris of Aberavon KG QC and Rt
Hon Lord Mayhew of Twysden QC. We also took evidence from Robert
Wardle, Director of the Serious Fraud Office. We received several
memoranda, details of which are listed on page 48.
9. Between taking oral evidence and the publication
of this report, the Department for Constitutional Affairs ceased
to exist, and was replaced by the new Ministry of Justice on 9
May 2007. The Rt Hon Lord Falconer of Thoroton QC retained his
role of Lord Chancellor, and became the Secretary of State for
Justice. Later, following a change of Prime Minister on 27 June
2007, Rt Hon Jack Straw MP, became Secretary of State for Justice
and Lord Chancellor, and Rt Hon Baroness Scotland of Asthal QC
was appointed Attorney General. On taking office she announced
that, except if the law or national security requires it, not
to make key prosecution decisions in individual criminal cases.[8]
In the Green Paper The Governance of Britain published
on the 3 July 2007, the Government indicated that it would publish
a consultation paper before the summer recess on the role of the
Attorney General.[9]
1 Rt Hon Lord Williams QC and Rt Hon Lord Goldsmith
QC Back
2
Q 319 Back
3
Professor Jeffrey Jowell QC, Politics and the Law: Constitutional
Balance or Institutional Confusion , the JUSTICE Tom Sargant
Memorial Annual Lecture, 17 October 2006, p.11 Back
4
For example see The Role of the Attorney General in Changed
Constitutional Circumstances, Birmingham College of Law, 29
November 2006, and Government and the Rule of Law in the Modern
Age , 22 February 2006. Back
5
Ibid Back
6
Constitutional Affairs Committee, Party Funding-oral evidence
from the Lord Chancellor on the role of the Attorney General,
First Special Report of Session 2006-07, HC 222 Back
7
On two separate occasions: 7 February 2007 and 27 June 2007 Back
8
HC Deb, 3 July 2007, col 817 Back
9
Ministry of Justice, The Governance of Britain, CM 7170,
p. 24 Back
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