Select Committee on Constitutional Affairs Fifth Report

3  Recent Controversies around the Role of the Attorney General

35. While it is clear to us that the constitutional arrangements for the Attorney General are in need of reform, the impetus for reform of the post has increased as a result of the Attorney General's involvement in three recent high profile and controversial matters, which have brought the inherent contradictions in the constitutional role of the Attorney General into sharp focus: the BAE inquiry; his advice on the invasion of Iraq; and the 'cash for honours' police inquiry.

36. Several commentators have made the point that the Attorney General's office offends the separation of powers.[49] Not least of these was the former Attorney General Lord Shawcross, following a number of incidents in the late 1970s where the then Attorney, Rt Hon Sam Silkin, declined to prosecute the Clay Cross Councillors or to prosecute the Post Office Union for its unlawful boycott of mail to South Africa during the apartheid era.[50]

37. In evaluating Lord Shawcross's claims, Professor Jowell concluded that "no doubt then, as nowadays, the allegations of actual bias were false but the issue is not the reality of bias but its appearance: does the Attorney's action or inaction leave a doubt in the public mind about whether his opinion was driven by law or political convenience"?[51] In commenting on the example of the Attorney General's advice on the legality of the war in Iraq, Professor Jowell argued that the case illustrated the "inherent tension and that the dual political and legal role of the Attorney inevitably lends itself to charges of political bias in legal decisions".[52] This, he argued, has resulted in claims that "the time had come to appoint an independent Attorney, as in other countries".[53]


38. In March 2006 it emerged that the Labour Party had been the recipient of a number of secret loans in the run up to the 2005 General Election and that some of the donors had been offered peerages. Angus MacNeil MP wrote to the Metropolitan Police asking them to investigate whether the Honours (Prevention of Abuses) Act 1925 which banned the sale of honours had been broken. Investigations have also focused on whether the Political Parties Elections and Referendums Act (PPERA) 2000 was breached and whether there had been conspiracy to pervert the course of justice.[54] The case file was handed to the Crown Prosecution Service (CPS) on 20 April 2007,[55] and on 4 June 2007 the CPS asked the police to "undertake further inquiries".[56] The possibility that senior Government colleagues or their aides and officials might be prosecuted has raised fundamental questions about a potential conflict of interest for the Attorney General, if faced with a decision of whether or not to pursue a prosecution.

39. In the course of our inquiry into Party Funding[57] Andrew Tyrie MP asked the then Lord Chancellor the following question relating to any possible prosecutions arising from the police inquiry into allegations of the sale of public honours and other matters:

".. can you give the public an assurance that the Attorney General will not interfere in any way with the conclusions of the DPP and that the DPP would be permitted, were there to be something brought to him, to take any decisions for prosecution wholly independent of the Attorney General?"

Lord Falconer replied:

"Of course. It is a matter for the DPP and the Crown Prosecution Service to make decisions in relation to this in the normal way and, of course, the Attorney General would not interfere in the normal course of decisions being made."[58]

40. We took this to mean that the Attorney General would not be involved in the decision as to whether there should be a prosecution or not. However, in the light of later public statements made by the then Attorney General about his duties in relation to decisions about prosecutions arising from the police inquiry, the Chairman of the Committee wrote to the then Lord Chancellor seeking clarification of his answer. We received a letter in reply from Lord Falconer and subsequent correspondence from the then Attorney General. [59] In his letter of 7 December, Lord Goldsmith said:

"However, I know the Lord Chancellor well understands that he was not in a position to give an 'assurance', as you have termed it, as to how I would act. No other Minister, however distinguished or senior, has the ability to bind the Attorney General in how he exercises his role."[60]

41. When giving oral evidence to the Committee, Lord Goldsmith gave the following commitment: "…if it is referred to me then my office will appoint independent leading counsel to advise, and, I make clear, in the event that there is not a prosecution then I will make public that advice. That will mean that the public will know openly, it will be transparent, what the reasons are and why".[61] He confirmed that this would mean "the whole of the advice which relates to the decision not to prosecute".[62] Lord Goldsmith also said that he would be "perfectly content" to consult Opposition parties in an attempt to secure prior agreement on who he would consult and from whom he would seek advice.[63]

42. We welcome Lord Goldsmith's commitment to publish the whole of the advice that relates to the decision not to prosecute should there be no prosecutions as a result of the Police's inquiry into allegations of 'cash for honours'. We also welcome his willingness to consult Opposition parties before deciding who should provide that independent advice. We hope that the new Attorney General will honour these commitments. However, we are concerned that this does not address the fundamental conflict of interest that the new Attorney General may face in deciding whether or not to pursue a prosecution.


43. The decision taken to drop a Serious Fraud Office investigation into allegations that Saudi officials were bribed to win an order for a British arms firm has attracted significant levels of public scrutiny and controversy. As Attorney General, Lord Goldsmith was at the centre of this controversy which not only led to heavy public criticism[64] but also to suggestions that the case could be subject to judicial review.[65] Media speculation has focused on whether the Attorney General changed his mind in his decision of whether or not to prosecute as a direct result of political pressure from Downing Street.[66] Lord Goldsmith himself acknowledged the controversial nature of this case, and stated that "this is the only case in the nearly six years I have been privileged to hold this office that there has been any sustained suggestion that a decision has been politically driven".[67]

44. Lord Goldsmith defended his position during a debate in the House of Lords on 1 February, in which Baroness Williams of Crosby called attention to the responsibilities of the Attorney General, other members of the Government and the Serious Fraud Office for compliance with the United Kingdom's treaty obligations and the Rule of Law regarding the alleged bribery and corruption of foreign officials.[68]

45. In oral evidence to the Committee, Lord Goldsmith stressed to us that the decision (not to prosecute) "was taken by the Director of the Serious Fraud Office",[69] and that while he agreed with that decision, that his view was not based "quite on the same grounds".[70] Lord Goldsmith also corrected any misunderstanding about his comments in respect of balancing the Rule of Law and the public interest. He said: "if anyone takes that as meaning that we … can set aside the Rule of Law for reasons of expediency or general interest, that is absolutely not the position". He continued: "the Rule of Law does recognise that in all prosecutions the prosecutor will have to take account of two factors, the sufficiency of the evidence and whether the public interest is in favour of prosecuting or not".[71] In examining the public interest in this case, Lord Goldsmith acknowledged that he had consulted a "number of other Ministers"[72] but maintained that "occasionally there are public interest considerations where it is legitimate to seek the views of other Ministers, not on whether there should be a prosecution but on what the public interest is".[73]

46. Graham Rodmell of Transparency International (UK) said "that decision and the involvement in it of the Attorney General...raise very serious concerns about the constitutional propriety of the Attorney General's roles, and his abilities to perform them in a manner consistent with the public interest in the maintenance of both the Rule of Law and the highest standards of public conduct..."[74] Lord Lester of Herne Hill QC has written that the BAE case "shows how fragile and inadequate are our present constitutional arrangements for protecting the Rule of Law".[75] Professor John Spencer, Selwyn College, Cambridge argued that the case raised the broader question of whether it was appropriate that an Attorney General (as a member of the executive) should have the legal right to stop a prosecution. Professor Spencer argued that this position had only evolved by convention, and that this convention was "inconsistent with the politically independent administration of justice".[76]


47. Much of the discussion of the initial decision to invade Iraq was based on the advice given to the Government by Lord Goldsmith as Attorney General as to whether the invasion of Iraq was legal without a second resolution from the UN Security Council. The Government faced calls for the publication of that advice in full. On Tuesday 9 March 2004, Elfyn Llwyd MP tabled a motion for debate that "this House believes that all advice prepared by the Attorney General on the legality of the war in Iraq should be published in full".[77] While the motion was rejected in the House of Commons by 283 votes to 192, following continuing pressure and increasing media scrutiny, the Attorney General's full advice on the legality of the war with Iraq was published on 10 Downing Street's website on 28 April 2005. The document showed that the Attorney General's advice of 7 March 2003 had examined possible doubts and arguments about the legality of the war. However, none of these concerns had appeared in the published advice of 17 March 2003.[78] This only served to fuel speculation that Lord Goldsmith had changed his mind on the legality of going to war with Iraq in the face of direct political pressure from Downing Street.[79] As a result of this case there has been recent debate about whether the Attorney General's legal advice to Government should be published as a matter of course.

48. Writing in the Guardian on 1 February 2007, Patrick Wintour reported a speech due to be delivered by the Rt Hon Harriet Harman MP, then Minister of State, Department for Constitutional Affairs[80] (apparently in her private capacity) on Saturday 3 February. It suggested that the Minister would say that public trust in the role of the Attorney General had been undermined, and this should be addressed by requiring his legal advice to be published as a matter of course.[81] David Pannick QC agreed, and argued that "the Attorney General's ultimate client is not the Government but the public, the Attorney General should have the power, if necessary, to publish his or her legal views on important matters, while maintaining the confidentiality of discussions with ministers".[82]

49. However, there was little support for this position amongst our witnesses. Lord Goldsmith told the Committee that "the Attorney General is, and must remain, an adviser to the Government and not to Parliament. He or she cannot serve these two clients simultaneously without running into impossible problems of confidentiality and conflict of interest".[83] In oral evidence to the Committee the then Lord Chancellor, Lord Falconer of Thoroton argued that:

"The right position is that in very many cases it will be inappropriate to disclose the advice that has been given because you want to be sure that Government departments and ministers take advice. As somebody pointed out, if there is a chance that the advice will immediately be published, that will discourage people from time to time from taking advice. You also need to have a conversation very frequently with your lawyer as to what the position is. You want to be free to have that conversation without embarrassment. I think there are certain occasions where it is absolutely critical that the advice is published because the consequences of the advice are so significant and one of those is obviously in Iraq where the Attorney General did publish a statement of what his legal conclusions were before the decision was made by the House of Commons on the use of force against Iraq. I agree with what the two Attorneys just said, namely that generally you should not publish the advice. That should be the norm."[84]

50. Rt Hon Lord Morris of Aberavon QC likened the relationship of the Attorney General and the Government to that of a family solicitor and a client. He argued that: "most of you would not wish to have the advice of your family solicitors broadcast in the market place".[85] He added that it is "entirely a matter between the Government and the Attorney if it were opened up, and it has not been opened up except in very rare and exceptional cases over 500 years, so there must be some value in maintaining not only the concept of not revealing the advice but also whether the Attorney has been consulted at all".[86]

Public confidence in the role of the Attorney General

51. Lord Goldsmith has acknowledged the public controversy that surrounded his role over recent years. In oral evidence to the Committee he said that "there are aspects of what I do which have been controversial," but added that "that has always been the case with Attorneys General".[87] For example, in his book The Attorney General, Politics and the Public Interest, John Edwards, founder of the Centre of Criminology, Faculty of Law, University of Toronto, argued that there have been "distinct whiffs of political pressure being exerted",[88] since the 1950s, and that "the ability to resist such pressures will vary according to the experience, personality and determination of the Law Officers concerned".[89]

52. In his written evidence to the Committee Lord Goldsmith listed some of the controversial decisions of his predecessors, which included: the decision of Sir Peter Rawlinson not to prosecute Leila Khalid, a member of the PLO arrested for the attempted hijack of an Israeli airliner in 1970; the cases of the Clay Cross councillors and Gouriet in the time of Sam Silkin; Sir Michael Havers' consent to the prosecution of the civil servant Clive Ponting under the Official Secrets Act, following disclosure of information relating to the sinking of the Belgrano; and the collapse of the Matrix Churchill trial, leading to the Scott report into Arms to Iraq, in the time of Sir Nicholas Lyell.[90]

53. Referring to the difficulties facing Attorneys General, Lord Goldsmith cited the example of the recent controversy over his role in the event of investigations into party funding. He said "some commentators suggested I should simply stand aside from any involvement, but as I pointed out that it is not possible where my consent is actually required by law. No prosecution under those provisions can go ahead without it. In fact, as I also pointed out, the position goes further than that because of my constitutional responsibility to be answerable for prosecutions in this country".[91] Based on both his own experiences and that of his predecessors, Lord Goldsmith concluded that :

"It is inherent in the role of Attorney General that it sometimes falls to the holder of that office to make controversial or unpopular decisions. As one academic writer has put it: 'It would seem that where politically contentious decisions are concerned, the Attorney General is unlikely to escape criticism whatever [decision] he makes'. However the examples I have mentioned give the lie to any idea that the role of Attorney General has become more 'political' or more controversial in recent years."[92]

However, in highlighting the inherent tensions of the role of the Attorney General, Lord Goldsmith has only served to strengthen the case for the reform of the office of Attorney General. It is precisely his "constitutional responsibility to be answerable for prosecutions," which is at the heart of the problem.

54. Recent controversial issues including the 'cash for honours' investigation, the decision not to prosecute in the BAE Systems case and allegations of political pressure to amend legal advice on the war in Iraq, have compromised or appeared to compromise the position of the Attorney General. The perceptions of a lack of independence and of political bias have risked an erosion of public confidence in the office.

55. We agree that there are inherent tensions in the role of the Attorney General and that this is not a new situation. However, it is time that these issues were addressed. The tensions which have been highlighted by these three controversial cases, alongside the institutional problems identified earlier, point to the need for the reform of the role and responsibilities of the Attorney General.

56. The Attorney General's responsibility for prosecutions has emerged as one of the most problematic aspects of his or her role. Allegations of political bias, whether justified or not, are almost inevitable given the Attorney General's seemingly contradictory positions as an independent head of prosecutions, his or her status as a party political Prime Ministerial appointment, and his or her political role in the formulation and delivery of criminal justice policy. This situation is not sustainable.

49   For example, Lord Woolf in his Hamlyn lectures, Lord Steyn in a lecture to the Administrative Law Bar Association. Back

50   Ev 61 Back

51   Professor Jeffrey Jowell QC, Politics and the Law: Constitutional Balance or Institutional Confusion , the JUSTICE Tom Sargant Memorial Annual Lecture, 17 October 2006 Back

52   Ibid Back

53   Ibid. Some Commonwealth countries do have Attorneys who combine the legal and political roles but others (such as Ireland, South Africa and India) do not. Back

54 Back

55 Back

56 Back

57   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

58   Q 97 Back

59   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

60   Ibid Back

61   Q 46 Back

62   Q 49 Back

63   Q 51 Back

64   For example, "Lord Goldsmith's folly has now been brutally exposed", The Guardian, 1 February 2007.  Back

65   Q 12. See also Will Woodward and David Leigh, The Guardian, 16 December 2006, also available at,,1973357,00.html.  Back

66   David Leigh and Rob Evans, The Guardian, 1 February 2007,,,329702255-117700,00.html add corner house evidence. Back

67   Ev 80 Back

68   HL Deb, 1 February 2007, col 339 Back

69   Q 12 Back

70   Q 13 Back

71   Q 15 Back

72   Q 21 Back

73   Q 19 Back

74   Ev 50 and 51 Back

75   The Guardian, 1 February 2007, available at Back

76   Ev 106 Back

77   HC Deb, 9 March 2004, col 1397 Back

78 Back

79,,1164079,00.html and,,1445145,00.html Back

80   Harriett Harman became Minister of State for Justice on the 9 May 2007. Back

81,,2003074,00.html Back

82   David Pannick QC, The Times, 27 February 2007  Back

83   Ev 49 Back

84   Q 144 Back

85   Q 139 Back

86   Q 140 Back

87   Q 102 Back

88   p. 321 Back

89   p. 321 Back

90   Ev 61 Back

91   Attorney General, The Role of the Attorney General in Changed Constitutional Circumstances, Birmingham College of Law. 29 November 2006 Back

92   Ev 61 Back

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