House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Fifth Report

2 The Constitutional Role of the Attorney General

10. The Attorney General has a variety of different responsibilities: he or she is the Government's chief legal adviser, superintends the prosecution agencies, is a Government minister with responsibility for criminal justice and acts as the guardian of the public interest in certain other cases.[10] In his written evidence to the Committee the then Attorney General, Rt Hon Lord Goldsmith QC, said that he exercised these varied functions on the basis of three overriding principles: "to give legal advice and take decisions based on a scrupulous approach to the law and to evidence; where I am exercising my public interest functions, to act on the basis of an objective, dispassionate assessment of the public interest, without regard to party political considerations; and to act independently, fairly and with accountability".[11]

The current responsibilities of the Attorney General

CHIEF LEGAL ADVISER TO THE GOVERNMENT

11. One of the main functions of the Attorney General is the provision of legal advice to the Government. Until comparatively recently, the Attorney General was expected to be able to advise on a wide range of matters based on his own knowledge of the law. In reality, much of this advice is prepared by civil servants who are lawyers, expert in a particular field, for example EU law. The Attorney General may also consult specialist counsel when necessary. The Attorney General provides political 'cover' for the advice, which is usually not made public.

SUPERINTENDENCE OF THE PROSECUTION AGENCIES

12. The Attorney General has a number of functions in relation to criminal proceedings, which include:

a) The requirement for consent to prosecute certain categories of criminal offences, such as those relating to Official Secrets, corruption, explosives, incitement to racial hatred, and certain terrorism offences with overseas connections.

b) The power to refer unduly lenient sentences to the Court of Appeal.

c) The power to terminate criminal proceedings on indictment by issuing a nolle prosequi.

d) The power to refer points of law in criminal cases to the Court of Appeal.

13. The Attorney General is also responsible by statute for the superintendence of the main prosecuting authorities: the Crown Prosecution Service (CPS), Serious Fraud Office (SFO), Revenue and Customs Prosecution Office (RCPO) and the Director of Public Prosecutions in Northern Ireland.[12]

14. The concept of 'superintendence' has never been categorically defined. In broad terms, the Attorney General has suggested that 'superintendence' can be said to encompass "setting the strategy for the organisation; responsibility for the overall policies of the prosecuting authorities, including prosecution policy in general; responsibility for the overall 'effective and efficient administration' of those authorities, a right for the Attorney General to be consulted and informed about difficult, sensitive and high profile cases; but not, in practice, responsibility for every individual prosecution decision, or for the day to day running of the organisation".[13]

15. During his period of office, Lord Goldsmith emphasised this dimension of his role. He told the Committee that it had been "one of my highest priorities as Attorney General to strengthen and improve the prosecution service. I set out my vision at the start of my term and have devoted much time and effort to it".[14] He added: "When I came in to this job...we had a prosecution service...which had never really fulfilled its proper functions...it was under-funded, under-managed, under-resourced and...very lacking in confidence. I believe, not just because of what I have done, although I have done a lot of it in the last five and a half years, it is now a service which is confident, which has increased resources and which has increased powers and responsibilities".[15] Although the Attorney General's superintendent functions are exercised independently of his functions as a Government minister who is jointly responsible for criminal justice with the Home Secretary and the Lord Chancellor, Lord Goldsmith claimed that his position as a minister had enabled him to achieve significant improvements in this area: "I do not believe that those changes to the prosecutors would have taken place unless there had been someone in Government, able to talk to the minister from the Prime Minister down about the need to find those resources..."[16]

Arbiter of the public interest

16. In exercising his function as superintendent of the prosecution agencies, the Attorney General has to take particular responsibility for ensuring that the public interest is taken into account when deciding about whether or not to bring or discontinue prosecutions. In 1951, Sir Hartley Shawcross, the then Attorney General, made the classic pronouncement on the public interest and his role in exercising his prerogative and statutory responsibility in relation to prosecutions,[17] which has been supported by Attorneys General ever since: "it has never been the rule in this country — I hope it never will be — that suspected criminal offences must automatically be the subject of prosecution".[18] He continued:

"The true doctrine is that it is the Attorney General, in deciding whether or not to authorise the prosecution, to acquaint himself with all the relevant facts, including for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have on public morale and order, and with any other consideration affecting public policy. In order so to inform himself, he may...consult with any of his colleagues in Government, and indeed...he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations which might affect his own decision, and does not consist, and must not consist, in telling him what that decision ought to be."[19]

17. In practice, the current Code for Crown Prosecutors identifies a two stage test as to whether prosecutors should proceed with a prosecution. The first is the evidential test, which asks whether there is enough evidence to secure a conviction. The second is that a prosecution must be in the public interest.[20] The CPS code states that:

"the public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. Although there may be public interest factors against prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution."[21]

Ultimately, it is for the Attorney General to take responsibility for this decision.

REPRESENTING THE PUBLIC INTEREST IN CIVIL PROCEEDINGS

18. Apart from superintending the prosecution agencies, the Attorney General has a variety of other responsibilities and powers to safeguard the public interest in individual cases, e.g. the power to bring proceedings for contempt of court; power to bring proceedings to restrain vexatious litigants; power to bring or intervene in certain family law and charity proceedings and, most importantly, the power to bring or intervene in other legal proceedings in the public interest.[22]In cases of major importance the Attorney General may represent the Government in the hearing in person.

RESPONSIBILITIES ON BEHALF OF PARLIAMENT

19. The Attorney General has additional responsibilities in relation to Parliament covering the constitution and conduct of proceedings in Parliament, including: questions of parliamentary privilege; the conduct and discipline of Members; and the meaning and effect of proposed legislation. The Attorney General may intervene in court proceedings to assert the privileges of either House, either of his or her own motion or, more usually, at the request of the House authorities or indeed the trial judge. Such cases have usually arisen where parties seek to question proceedings in Parliament contrary to Article IX of the Bill of Rights. In that way, the Attorney performs the important function of representing the interests of Parliament in the courts.[23]

RESPONSIBILITY AS CRIMINAL JUSTICE MINISTER

20. As part of the trilateral responsibility for the criminal justice system in England and Wales between the Lord Chancellor and Secretary of State for Justice,[24] the Home Secretary and the Attorney General, the latter also exercises a political role as a criminal justice Government minister. Together with the two Ministers of the Crown with responsibility for criminal justice and other ministers and officials, the Attorney General sits on the National Criminal Justice Board; he also has shared responsibility for the cross-departmental Office for Criminal Justice Reform, which is now 'domiciled' in the new Ministry of Justice. The Attorney General therefore participates in the formulation of criminal justice policies.

A "GUARDIAN OF THE RULE OF LAW"?

21. In addition to his role in defending the public interest in the exercise of his responsibilities, Lord Goldsmith considered that 'upholding the Rule of Law' was one of his key functions.[25] He identified this role as "most obviously my role as the Government's chief legal adviser, although it goes wider".[26] In oral evidence to the Committee, Lord Goldsmith identified three specific elements in relation to his role in upholding the Rule of Law. The first aspect he identified was compliance with the law, "that means domestic and international obligations".[27] The second aspect was the relationship with the courts, which he defined as "partly respect for the courts and their judgments" but also about "being sure within appropriate boundaries…we subject ourselves as Government to the scrutiny of the independent courts".[28] The third element was identified as "certain basic values which it is important to stand up for. Quite a number of them are to be found, of course, in the European Convention".[29]

CONCLUSION

22. The Attorney General's functions can be divided into two distinct categories: the first relates to legal decisions about prosecutions on a technical basis, frequently made by legal staff working under his superintendence. These may involve underlying political considerations either relating to policy more generally or to specific cases. However, this system is not transparent, and the division of the responsibility and lines of accountability between the Attorney General and the Directors of the various prosecution agencies is unclear. For example, in giving oral evidence to the Committee, Robert Wardle, the Director of the Serious Fraud Office, made it clear that it was his decision to halt the investigation into the BAE Systems case. However, the then Attorney General, Lord Goldsmith also made it clear to the Committee that had there been disagreement between himself and the Director, the final decision would rest with the Attorney General[30], and that he would have halted the investigation on different grounds.[31] The lines of accountability were further blurred by the fact that the Attorney General sought his own independent legal advice in this particular case.[32]

23. The second range of functions involves more traditional ministerial duties such as managing resources and accounting to Parliament and the public for policy and the use of public funds. We note the evidence of Lord Goldsmith in relation to the need for ministerial direction in the context of improving the work of the Crown Prosecution Service.

24. While we accept that there has to be some ministerial policy direction for the prosecution services, the lack of transparency in the Attorney General's role in decision making in prosecutorial decisions is unsatisfactory. We need to consider whether responsibility for both types of function should remain the responsibility of the Attorney General.

Changes to the institutional landscape affecting the Attorney General's role

25. Recent reforms to the institutional landscape have given rise to questions about the status and functions of the Attorney General, in particular the Constitutional Reform Act 2005 and the creation of the Ministry of Justice.

THE CONSTITUTIONAL REFORM ACT 2005

26. The Constitutional Reform Act 2005 brought about a series of changes to the role of the Lord Chancellor, which have had both a direct and indirect impact on the Attorney General, specifically in his duty to uphold the Rule of Law. Professor Jowell argued that as a result of the 2005 Act, the constitutional balance had indeed been "radically altered".[33] Lord Goldsmith explained:

"The Constitutional Reform Act effected important, far reaching and irreversible constitutional change. It has created an independent judicial appointments commission; strengthened the independence of the judges; broken the link between the judiciary and parliament, turning the House of Lords in its judicial capacity into a Supreme Court to operate from its own building from 2009. But above all it was the changes to the role of the Lord Chancellor; the abolition of his traditional position as the head of the judiciary as well as a member of the Cabinet and effective Speaker of the House of Lords…and removing effectively his power to choose judges at will".[34]

In doing so, the Constitutional Reform Act 2005 removed the Lord Chancellor from the position of being the Head of the Judiciary and from being subject to the judicial oath. Section 14 of the Constitutional Reform Act 2005 amended the text of the Lord Chancellor's oath, making specific provision that the Lord Chancellor had a duty to uphold the Rule of Law.[35]

27. Lord Goldsmith argued that this specific change had a potential impact on the role of the Attorney General in relation to his duty in upholding the Rule of Law. In this respect he argued that the Act "was a little odd in focusing on the role of the Lord Chancellor alone," and agreed with Lord Goodhart's statement that "…by changing the role of the Lord Chancellor, it has indirectly and consequently changed the role of the Attorney General".[36] Lord Goldsmith explained his position further in a speech entitled Government and the Rule of Law in the Modern Age . He stated that:

"[…] The Law Officers play a key role as advisers on the most sensitive and difficult issues; as scrutineers of departmental analysis of ECHR compliance; and as superintending ministers for the legal services provided in Government. I superintend, for example, the Treasury Solicitor — the largest provider of legal advice to Government outside prosecutions. So I regard one of my responsibilities as Attorney General to uphold the Rule of Law. It was interesting therefore to note that when it came to the debates on the Constitutional Reform Act little attention was given by many to this aspect. Given that it is no part of the Lord Chancellor's role to advise Government, the role of the Law Officers — who are regarded as the final authorities on legal issues in Government — deserved perhaps greater note."[37]

28. When giving oral evidence to the Committee, Lord Goldsmith re-emphasised his responsibility to uphold the Rule of Law:

"It is not the responsibility of the Lord Chancellor to advise on the law and he does not tender legal advice to the Government. It is very important that the Lord Chancellor role is there, and traditionally it always has been, but I have always regarded a part of my role as upholding the Rule of Law. I am the one who gets called upon to give advice. I am the one who has overall responsibility for supervising Government litigation in which issues about the Rule of Law constantly crop up. Parliamentary Counsel raises concerns about the propriety or legality of proposed legislation to me, not to the Lord Chancellor. I advise the Legislative Programme Committee on whether there are issues of propriety or not. So I think the role is already extremely important in terms of the Rule of Law."[38]

However, the responsibility that Lord Goldsmith claimed for upholding the Rule of Law does not require the provision of new powers or responsibilities in respect of the Rule of Law. Rather, this duty provides the framework within which the Attorney General has to exercise his many responsibilities.

29. In his written submission to the Committee, Lord Goodhart QC explained that while the Act had placed an express obligation (sections 1 and 17) on the Lord Chancellor to respect the Rule of Law and, together with all other Ministers, to respect judicial independence (section 3), he also identified that "the effect of the Act as a whole is to convert the Lord Chancellor from being a Minister with a judicial as well as political role (including making judicial appointments) and standing at a distance from mainstream politics into a straightforward departmental Minister who does not need to have a legal qualification and may sit in the House of Commons".[39] Since Lord Goodhart submitted this evidence, a Secretary of State for Justice and Lord Chancellor has been appointed who, although a barrister, only practised for two years.[40]

THE CREATION OF THE MINISTRY OF JUSTICE

30. On 9 May 2007 the Government implemented a significant machinery of government change which had a major impact on the delivery of criminal justice policy. The Home Office was effectively split into two, and while it retained responsibility for policing and counter-terrorism, responsibility for the prison and probation services were transferred to the new Ministry of Justice. This was a new department which replaced the old Department for Constitutional Affairs.

31. In responding to these changes, Lord Goldsmith emphasised the points which he had made earlier in respect of the Constitutional Reform Act 2005:

"It is clear that the Ministry of Justice will now be a major policy department and its Secretary of State need no longer be a lawyer. In these circumstances the case for retaining the role of the Attorney General as a senior lawyer in Government becomes in my view all the stronger. For better or worse Government operates in a world where the law, and the need for the Rule of Law, plays an increasingly important role...It is right that there should be a lawyer at the heart of Government...to ensure that the law is properly respected."[41]

In his supplementary written evidence to us Lord Goldsmith explained that the creation of the new Ministry of Justice did not change the Attorney's responsibilities or those of any of his Departments.[42] Neither did it disturb the position of the prosecutors, who remain outside the control of an ordinary political Minister.[43] The Cabinet Office policy document Machinery of Government: Security and Counter-Terrorism, and the Criminal Justice System states that in relation to the Attorney General's Office: "existing functions remain, including superintendence of the prosecuting authorities and other existing criminal justice responsibilities."[44]

CONCLUSION

32. There is a tension in the Attorney General's comments on his role as a superintendent of the prosecution services. On the one hand he emphasised that it was "constitutionally crucial" for the independence of the prosecutors to be maintained, and welcomed the fact that they were still his responsibility following the creation of the Ministry of Justice.[45]However, on the other hand he argued that the changes made to the prosecution services while under his supervision "could not have been achieved" unless "I had been able, as a senior minister with specific responsibility for the prosecutors, to champion their interests within Government..."[46] It is not clear how the prosecution services maintain their independence if they have a senior minister as their superintendent.

33. These opaque arrangements are symptomatic of the confusion that surrounds the Attorney General's status as a minister. The then Secretary of State for Justice and Lord Chancellor, Rt Hon Lord Falconer of Thoroton said: "the role that the Attorney General is playing is utterly different from any other Minister".[47] Indeed, the regular attendance of the Attorney General at Cabinet is only a very recent development, and one which was frowned upon by both the former Attorneys General who gave oral evidence to us.[48]

34. The Constitutional Reform Act 2005 and the creation of the new Ministry of Justice have changed the landscape within which the Attorney General performs his or her functions. While these changes have drawn attention to the inherent tensions in the role, neither the Constitutional Reform Act 2005 nor the creation of the Ministry of Justice have clarified or strengthened the independence of the office of the Attorney General. There is confusion about the overlap between the Attorney General's position as the Government's chief legal adviser, his role as the superintendent of the Prosecution services (an independent role), and his role in carrying out 'ministerial functions' in relation to criminal justice policy (a party political role). In our view, the time has come to reform the basis on which he or she carries out his or her functions and to define more clearly the extent of his or her role.

10 http://www.lslo.gov.uk/goldsmith.htm Back

11 Ev 58 Back

12 Ev 58 Back

13 Ev 58 for a more detailed discussion see Joshua Rozenberg, 'The Director and the Attorney' in The Case for the Crown (1987), pp. 179-189; and see Q 217 Back

14 Ev 58 Back

15 Q 39 Back

16 Q 39 Back

17 John Edwards, The Attorney General, Politics and the Public Interest, (1984), p 318 Back

18 HC Deb, 29 January 1951, column 681 Back

19 HC Deb, 29 January 1951, cols 683-684 Back

20 cps.gov.uk/victims_witnesses/codetest.html Back

21 cps.gov.uk/victims_witnesses/codetest.html Back