House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Fifth Report

4 Options for Reform

57. In a lecture on 16April 2007, Rt Hon Lord Woolf, the former Lord Chief Justice of England and Wales, warned against the reform of the office of Attorney General. He said: "like the Lord Chancellor, the Attorney General is part of the glue that holds the constitution together. At present he is a means of communication between the judiciary and the Government and at a time when the other constitutional changes are taking place it would be as well not to interfere with his historic office".[93] Much of the evidence which we received was similarly cautious about changing the nature of the office of Attorney General.[94] While Lord Goldsmith acknowledged that it would be wrong to dismiss the voices which had been raised in concern — it was "undeniable that there is an issue to be addressed"[95] — he maintained that the issue was not "with the role itself but with its perception".[96]

Minimal reform

58. Lord Goldsmith identified the need for increasing public education and public information around his role, in particular the distinction between "my public interest role and my role as a Government minister".[97] The solution he suggested was "not to change the role but to provide more information as to its boundaries and scope".[98] Lord Mayhew of Twysden QC agreed that there was a "perceptual tension" associated with the role of the Attorney General, which was "why the true position as a matter of education…is so important".[99]

59. One means of achieving better public understanding would be to seek greater clarity of the role of the Law Officers. Lord Goldsmith emphasised that "this must be done through a mechanism which will benefit public understanding but not change the role",[100] and he mentioned the possibility of changing the oath of the office of the Attorney General in order to "improve clarity around his role and function".[101] Lord Mayhew agreed "there was mileage and merit in that…"[102] Lord Mayhew also suggested that a further means of improving clarity would be to produce "a statutory statement" of the Attorney General's responsibilities. He argued that this would be particularly useful in clarifying the Attorney General's non statutory role in relation to upholding the public interest.[103]

60. The then Lord Chancellor, Lord Falconer, did not believe that greater clarity would be sufficient. He said that "the public look at these issues in a different way now from the way they looked at them in the past…this is nothing to do with the most prominent instances; it is to do with a change in people's views and a desire for greater clarity in what people do".[104] He added:

" …I do not think the status quo is maintainable because it is perfectly plain…that there is so much attention now being focused on the role, with a searchlight on it which is not at all inappropriate. I cannot believe in the light of what everybody, including the Attorney General himself has said, that the current arrangements would remain completely in place. That is the inevitable consequence of a change in the political climate over a long period of time, the fact that people are looking at it, the fact that everybody has a variety of views on what the way forward would be."[105]

A "Serious Government Department"

61. In his original written submission to us Lord Goldsmith suggested the need for a "serious" Government department to support his office.[106] Lord Goldsmith expanded on this during his Birmingham lecture where he stated his belief that "the future constitutional role of the Attorney General…should comprise the responsibility for a serious Government Department with clear objectives which include upholding the Rule of Law, a duty to the Crown and the guardianship of the public interest and the resources to fulfil that role".[107] Lord Goldsmith raised the issue of a possible expansion of his role. He stated that "future consideration should be given to whether some functions (such as human rights or constitutional law) might sit better with the Law Officers than with the Ministry of Justice".[108]

62. However, Lord Goldsmith failed to explain to us what he meant by a "serious" Government Department. It was unclear how this would relate to the Lord Chancellor and his duties or, indeed, what exactly the responsibilities of that department would be. In oral evidence to the Committee, Lord Goldsmith said "I would simply put it in terms that I think there are responsibilities which I have to carry out, which I believe...it is in the public interest that they are carried out. It needs support in order to do that and I get support in different ways. That is really all I will say".[109] It also remains unclear as to why human rights and constitutional law might sit better with the Law Officers as opposed to the current arrangements. It did not appear to us that vital questions had been addressed, including the potential scope for disagreement and conflict with the other departments responsible for criminal justice.

63. We disagree with Lord Goldsmith's assessment that the problems relate only to the perceptions of the role of the Attorney General rather than to the nature and multiple functions of that role. While we see merit in improving the clarity of the existing role and functions through public education as a means of re-building public confidence, Lord Goldsmith's proposals for the reform of the Attorney General's office do not address the inherent tensions in the role. In that sense, far more fundamental questions need to be considered about the functions of the office of Attorney General and its constitutional position.

The political role of the Attorney General

64. There are several options for the reform of the office of the Attorney General. As previously noted in this report, at present, the Attorney General has both ministerial/political and non-ministerial/non-political functions. The then Lord Chancellor, Lord Falconer of Thoroton, identified two potential models other than the status quo for an Attorney General whose role is to give legal advice and superintend the prosecution services: a non-politician who sits either in the Commons or the Lords, or a non-politician who sits in neither House.[110] It is difficult to see how non-political status could apply to a Member of either House except a cross-bencher in the Lords. Both models are based on the separation between the Attorney General's technical legal functions and the elements of the job which are of a political nature. In practice, achieving such a clear delineation of political and non-political functions may prove to be difficult. For example, taking prosecutorial decisions on the basis of the 'public interest' may involve purely legal considerations, but on occasions, determining the 'public interest' can be inherently political.

65. It is both possible and desirable to ensure transparency and accountability in prosecutorial decision making. There are models which could improve the clarity, transparency and accountability of this decision making process. For example, the Attorney General could be an independent legal adviser to the Government but not a member of the Government; the Attorney General could be a member of the Government, but have no responsibility for the provision of legal advice and no prosecutorial functions; or the office of Attorney General could be abolished, with a junior minister within the Ministry of Justice performing the policy functions, an independent officer undertaking the legal advice and independent prosecutorial role and the Secretary of State taking overall political responsibility and accountability for controversial prosecutorial decisions. The question of who holds the title of Attorney General is secondary: the important point is the separation of purely legal decisions or advice from functions which have political content, and the titles of either Attorney General or Solicitor General could be attached to either of the offices if the functions are split.[111]

66. In other jurisdictions, many of the duties of the Attorney General are carried out by non-political officials. We note the interesting examples of Ireland and Scotland [see text box]. Given that both the political and institutional context in which the Attorneys General operate in these jurisdictions is very different, it is neither possible nor desirable to copy them directly. However, the very existence of a non-political Attorney General in Ireland demonstrates the potential for change in England and Wales. The position in Scotland is closer to that in England and Wales where the Lord Advocate is bound by the collective responsibility of the Executive, except in respect of retained functions. He or she also loses office like all other ministers if the Executive falls. The key question to be addressed is whether a non-political office holder could perform some of the functions of the Attorney General, while at the same time maintaining his or her influence over ministers, and retaining his accountability to Parliament.[112]

The role of the Attorney General in other jurisdictions
In the majority of the main common law jurisdictions, it appears that Attorneys General do not have ministerial responsibility for the development of criminal justice policy, and their offices are largely confined to the provision of legal advice and supervision of the system of criminal prosecutions.[113] The most interesting and instructive models of de-politicised Attorneys General are in Ireland and Scotland.
The Irish model
The Constitution of Ireland adopted in 1937 provided for an Attorney General "who shall be the adviser of the Government in matters of law and legal opinion".[114] The Constitution also provided for the prosecution of all indictable crime, and both functions were exercised by the Attorney between 1937 and 1974. However, the Prosecution Offences Act 1974 transferred "all the functions capable of being performed in relation to criminal matters and in relation to election petitions and referendum petitions by the Attorney General" to the newly created Director of Public Prosecutions.[115] James Hamilton, Director of Public Prosecutions in Ireland since 1999, explained that the rationale for the creation of that office was twofold:
"Firstly, it was thought desirable to reduce the Attorney General's workload because of the increased burden of advising the Government in relation to matters of EC law following Ireland's accession to the European Communities. Secondly, the change was intended to avoid what was thought to be a possible public perception that political influence could be brought to bear on prosecutorial decisions".[116]
This model differed significantly from the English model of a Director of Public Prosecutions in that the Attorney General was not given any function of general superintendence over the work of the Director. The 1974 Act specifically provided that the Director should be independent in the performance of his functions. It is therefore unlawful to communicate with the Director in order to influence the decision of whether to initiate or withdraw criminal proceedings and decisions about sentence review on the grounds of undue leniency are also solely a matter for the Director.[117] The Director is accountable to Parliament through the Public Accounts Committee.
In addition to exercising the function as legal adviser to the Government, the Attorney General has a function to act as a representative of the public in legal proceedings for the assertion of the protection of public rights. Although this dual function has been criticised on the grounds that the Government itself might act contrary to the rights of the public, the Constitution Review Group Report 1996 recommended that the Attorney General retain this function as there was an insufficient workload to justify the creation of a separate office.[118]
The Attorney General has no executive responsibilities other than for the management of his or her own office which is responsible for handling the State's litigation and the drafting of Parliamentary legislation as well as giving advice to Government. The Minister for Justice, Equality and Law Reform is responsible for prisons, policing, the courts and law reform. The Attorney General is also responsible for the Law Reform Commission's vote and has the power to refer matters to them.
Article 30 of the Constitution prohibits the Attorney General from being a member of the Government. However, the modern practice is for the Attorney General to attend all Cabinet meetings.[119] The Attorney General does not necessarily have to be a Member of Parliament, and is appointed by the President on the nomination of the Taoiseach.[120] In the last 35 years only two Attorneys General have been Members of Parliament.[121]
The Scottish model
In comparing the position of the Attorney General in England and Wales with that of the Lord Advocate in Scotland, Rt Hon Elish Angiolini QC, the current Lord Advocate of Scotland, warned that it would not be "sensible to draw too close a comparison between them",[122]because the two systems are very different and have developed in different ways. However, there are broad comparisons that can be drawn in terms of a consideration of possible future models for the Attorney General of England and Wales, his or her role in Government and relationship with Parliament.
The Lord Advocate has four key roles and areas of responsibility. She is head of the systems of prosecution and investigation of deaths; the principal legal adviser to the Scottish Executive; she represents the Scottish Executive in civil proceedings and represents the public interest in a range of statutory and common law civil functions. Section 48 of the Scotland Act makes provision for her to take independent decisions as head of the systems of criminal prosecution and investigation of deaths. Furthermore, the Lord Advocate has been given a particular role in relation to ensuring that legislation passed by the Scottish Parliament is within the legislative competence of the Parliament, and has particular powers under the Scotland Act in relation to the resolution of legal questions about the devolved powers of Ministers and the Parliament.[123]
The Lord Advocate is a member of the Executive and accountable to the Scottish Parliament, but not necessarily a Member of that Parliament. Section 27 of the Scotland Act states that if a Law Officer is not an MSP he or she is empowered to participate in the proceedings of the Parliament but may not vote. The Lord Advocate can therefore be questioned by MSPs about the exercise of his or her functions, although she may not be required to answer questions or produce documents relating to the operation of the system of criminal prosecution in any particular case if it is considered that it might prejudice criminal proceedings or would otherwise be contrary to the public interest. Under the Parliament's Standing Orders, written questions about the operation of the systems of criminal prosecution and investigation of deaths are answerable only by the Law Officers, as are oral questions on those matters in all but exceptional circumstances (Rules 13.5.1, 13.7.1 and 13.8.3). A Law Officer may resign at any time and must do so if the Parliament resolves that the Executive no longer enjoys the confidence of the Parliament.[124]
The Lord Advocate argued that "…in Scotland there continues to be considerable merit in having a Ministerial head of the system of prosecution who is immediately accountable to the Parliament- subject to the safeguards to my independence which are provided by the 1998 Act". [125] Rt Hon Lord Boyd of Duncansby QC also saw merit in this system. He said "like other Ministers she is bound by the doctrine of collective responsibility except where she is exercising her retained functions (head of the systems of criminal prosecutions and investigation of deaths). In these cases she acts independently of any other person". However, he concluded that it was "a little early to see it as a model for others to follow".[126]

67. We examine below the Attorney General's main roles from the point of view of dividing his or her political and technical duties.

CHIEF LEGAL ADVISER

68. The first function of the Attorney General in Government is his or her role as the Government's chief legal adviser. The former Attorney General, Lord Morris of Aberavon identified that "the lion's share of the Attorney's time is taken as principal legal adviser to the Government...basically he is an in-house lawyer as some of our major corporations would have…"[127] While Lord Falconer agreed about the value of the confidential nature of the relationship between the Government and the Attorney in his role as legal adviser,[128] he raised the issue of whether it was either necessary or appropriate for the Attorney General, as legal adviser, to be a Government Minister. He said: "you want the Attorney General to be like the family solicitor, somebody completely trusted, but the family solicitor is not a member of the family and that seems to me to be the critical point".[129]

69. At present, not only is the chief legal adviser to the Government a Minister, but he is also a politician who follows the party whip. However, Lord Goldsmith was hesitant in acknowledging this. When addressing the claim that he was "actually a politician," Lord Goldsmith responded "I am not sure about that actually".[130] When it was put to him that he took the Labour Whip in the House of Lords, he acknowledged "well, if that is the definition, yes, of course".[131] He reaffirmed this point of view about his semi-detached political role in his second appearance before us.[132]

70. Rt Hon Lord Mackay of Clashfern argued that the changes to the role of the Lord Chancellor brought about by the Constitutional Reform Act 2005 "make it even more important that the senior legal adviser to the Government should be a member of the Government with free access to the Cabinet documents, with opportunity to attend Cabinet where appropriate and with the authority and experience that the Government could not easily ignore".[133] However, as illustrated by the position of the Lord Advocate in Scotland, it is not necessary to be either a politician or a minister in the usual sense in order to be a member of the Government.

71. Lord Goldsmith disagreed that advice would be more independent or carry greater credibility if it were given by someone outside Government: first, he strongly resisted "the suggestion that lawyers in Government are incapable of giving independent or impartial advice"; second, he argued that he was best placed to give frank, well informed and constructive advice "precisely because, as a Minister, I am in a position to understand the system of Government, the process of policy formulation and the overall context within which the advice is sought".[134] Lord Falconer disagreed with Lord Goldsmith's arguments, and said: "if the Treasury Solicitor says something to me, I am not going to say him, "well, you are not a Member of Parliament".[135] We agree. No sensible minister would ignore the advice of an independent Attorney General who is not a Government minister. We note that ministers already accept the legal views of Treasury Counsel, who are not political insiders. [136]

72. We agree with the view expressed by Lord Falconer that the status quo is not maintainable, and suggest that a series of steps should be taken to reform the role of the Attorney General. We see no reason why the official exercising the role of legal adviser to the Government should be a political appointee or a member of the governing party. Both in perception and reality, it would improve the independence and public confidence in the impartial nature and authority of the provision of legal advice if it were not the responsibility of someone in political life.

UPHOLDING THE RULE OF LAW

73. It is a duty of the Attorney General as a Government Minister to uphold the Rule of Law. The Rt Hon Lord Boyd of Duncansby, Solicitor General for Scotland from 1997-2000 and Lord Advocate from 2000-2006, argued that the changes to the role of the Lord Chancellor, (also outlined earlier in this report)[137] had made it "more important than ever that there be within Government someone who can give prominence to the maintenance to the Rule of Law".[138] In his Birmingham speech, Lord Goldsmith elaborated on this issue. He said, "as the Lord Chancellor no longer needs to be a lawyer, if the Attorney General were an employed official, there would be no lawyer at the heart of Government. I believe this would be a significant and unwise departure from the conventions of the past. There needs to be someone who can assess public interest, who "embodies the traditions of an independent profession and who embraces the values of legality and the Rule of Law".[139]

74. Lord Goldsmith said that given that it is no longer necessary for the Lord Chancellor to be a lawyer "I freely confess I believe it would be important that there would remain a senior lawyer at the heart of Government and the only other candidate for that is the Attorney General".[140] He added that "the Attorney General will have to continue to be a lawyer, and indeed a senior lawyer because it is a serious legal job which has to be done".[141]

75. Lord Goldsmith gave no concrete reasons about why it is such a necessity for a lawyer to be 'at the heart of Government', or what this meant. Professor Jowell also challenged this assertion and asked the key question "does that matter? He added "we do not necessarily want...a doctor to head up the Department of Health".[142] In the context of upholding the Rule of Law, Lord Goldsmith himself went on to say that "there cannot conceivably be the position that there is only one minister in Government who is concerned with the Rule of Law".[143] However, there are several alternative methods of ensuring that the Rule of Law is upheld within Government. For example, Professor Jowell identified that at present there was "no specific statutory duty upon any minister to protect or promote the Rule of Law in any specific way".[144] Making it a duty of every member of the executive to uphold the Rule of Law is one example of how this can be achieved without its being a specific ministerial responsibility of the Attorney General.

76. We recommend that following the Constitutional Reform Act 2005 the Government should give further consideration to the statutory arrangements for 'upholding the Rule of Law' within Government. It is not appropriate that the responsibility for upholding the Rule of Law lies with one member of the Government alone. We suggest that this be explored within the context of the development of a new Ministerial Code.

77. Furthermore, while we note Lord Goldsmith's claim that it is necessary to have a lawyer at the heart of Government, we question the merits of this claim. The inept handling of the beginning of the process of reform which culminated in the Constitutional Reform Act 2005 and the secretive process of establishing a Ministry of Justice, which was trailed in the newspapers before consultation either of the judiciary or the Lord Chancellor, were seemingly unaffected by the presence of lawyers within Cabinet.

CRIMINAL JUSTICE POLICY AND THE 'SUPERINTENDENCE' OF PUBLIC PROSECUTIONS

78. The third dimension of the Attorney General's role in Government involves taking joint responsibility for aspects of criminal justice policy.[145] David Pannick QC has suggested that "the political functions that the Attorney General currently performs as a criminal justice policy minister, including superintendence of the Crown Prosecution Service and other prosecuting authorities, should be transferred to a political Minister for Justice as they are incompatible with an independent legal role".[146] Lord Falconer agreed that this was one option for the potential reform of the office of Attorney General, however he also suggested a variation to this model: that the Attorney General would be "somebody who is not a politician, who is in neither House of Parliament and does the independent legal advice, the superintendence of the prosecution role in the sense of deciding whether a prosecution will start or finish, and has a propriety and public interest role".[147]

79. Lord Boyd of Duncansby disagreed and claimed that he would be "particularly concerned" if it was suggested that in any new arrangements superintendence of the prosecution services could be transferred to the Ministry of Justice with a non-political Attorney General retaining responsibility for individual decisions. He argued that this "would weaken the role of the prosecution services within the criminal justice system and give rise to concerns that there would be a loss of independence".[148] He also made a broader point:

"the arguments in favour of an independent Attorney suggest that it is possible to excise politics from his responsibilities. Of course it is important that the Attorney act independently...when taking individual decisions in relation to prosecutions. However the prosecution of crime is a responsibility of the State and it has a pivotal role in the criminal justice system. Apart from ensuring that the system is democratically accountable it is important to ensure that the policies that are pursued reflect public and political concern".[149]

80. Lord Goodhart QC argued that this combination of different responsibilities within the same office meant that there was indeed a potential conflict in the Attorney General's role as Government minister and as the superintendent of public prosecutions. He said:

"The row over the decision to stop the investigation into allegations of bribery involving BAE Systems shows that conflicts may arise. However, although I disagreed with the decision to stop the investigation, I am not certain that this proves that it would be desirable to separate the two functions of the Attorney General. The CPS is part of the structure of Government. While it is clear that day-to-day activities of the CPS should be handled as independently from the Government as possible, there are cases where it is not in the public interest to prosecute. It would be wrong for the Government itself to take that decision. Equally, it would be difficult to leave a final decision to the DPP or other senior official. The Attorney General, holding a position half way between the Government and the CPS, may well be in the best position to take the decision. It requires an Attorney General to be independent and tough-minded, but it is not easy to think of a better alternative."[150]

81. Despite acknowledging this tension, Lord Goldsmith argued that separating the roles would not avoid the necessity of making difficult decisions. He said that in the BAE case for example, "there was a difficult decision to be made about national security in this case. As it happened it was the independent prosecutor who made it, but someone has to make that decision and separating the role differently does not get away from that problem".[151] He concluded that on balance:

"I think it is helpful that when it comes to the formulation of criminal justice policy there is somebody in the circle who, first of all has this relationship with the prosecutors who are at the frontline and know what works, what does not work and what the problems are, and, secondly, who is able to bring considerations — and I do believe it is part of my role- on the Rule of Law as to how we should be proceeding in relation to criminal justice. I think it is better to be on the inside than on the outside".[152]

82. Professor Spencer argued that the example of the BAE Systems case cited above raises the more fundamental question of whether "it is necessary for the Executive (in whatever shape or form) to have a power to stop prosecutions on the grounds of the State".[153] He suggested that the UK should follow the Irish model,[154] where new prosecution arrangements have set the Director of Public Prosecutions "free from the power of the Attorney General to give him orders in a given case".[155] It would be a major departure from past practice for the Government to abandon any role in seeking the ending of prosecutions on national security grounds or other wider public interests grounds. There is likely to be a need for a mechanism through which Ministers can communicate to the independent Attorney General their recommendation or their insistence that a particular prosecution should not proceed on national security grounds. This should be a transparent process. The then Prime Minister, Rt Hon Tony Blair's insistence, in reply to a question from Sir Menzies Campbell on 13 June 2007, that he took full personal responsibility for the advice which led to the ending of the BAE Systems investigation implies that this approach is part of the present arrangements.[156]

83. The present situation where the Attorney General has both ministerial functions and is responsible for making decisions with regard to prosecutions results in a potential conflict of interest. While separating these two functions would not make difficult decisions any easier to make, it would remove the potential for the allegations of lack of independence and political impropriety. We recommend that the Government separate the policy functions and the prosecutorial functions of the Attorney General. The 'ministerial' functions would be more appropriately carried out by a minister within the new Ministry of Justice. This would also allow the Attorney General to be a truly independent superintendent of the prosecution services, responsible for deciding on prosecutions and exercising a propriety and public interest role, except in those cases where he or she was instructed by ministers, in a process which would have to be transparent, that on national security or public interest grounds a prosecution should not proceed.

Attendance at Cabinet

84. While there was no consensus about the Attorney General's role as a minister there was unanimous agreement that the he or she should not regularly attend Cabinet meetings. Both Lord Morris of Aberavon and Lord Mayhew of Twysden disapproved of the modern practice of the current Attorney General's regular attendance at Cabinet.

85. Lord Mayhew told the Committee: "…I am afraid I think it is a bad mistake for the policy to change. In my time it was the established convention that you were of Cabinet rank but not a member of the Cabinet, and you went by invitation to deal with the specific item of business and then you left".[157] He explained that this was important because "the members of the Cabinet have to accept legal advice from the Attorney and I think it would be more difficult for them to do so if he had been present taking part in a contested debate about policy because they might be tempted to think that if he gave them adverse advice to their political interest that was simply (to) reinforce the view that he had taken in the course of argument".[158] It is worthy of note that on 22May 2007 the new SNP Government in Scotland decided to stop inviting the Lord Advocate to attend the weekly meetings of senior Ministers in order to promote her "independence from the political process".[159]

86. We recommend that, regardless of whether there are any changes to the ministerial or party political status of the Attorney General, the old convention with respect to the Attorney General's attendance at Cabinet should be re-established. The Attorney General should attend the Cabinet by invitation only, and then only for the consideration of specific relevant agenda items.

How should the Attorney General be held accountable?

87. The accountability of the Attorney General's office is one that has attracted a great deal of debate, including contributions from Lord Goldsmith when he was Attorney General. There is a broad debate to be had about the merits of parliamentary accountability, and whether the office holder should be a Member of the House of Commons or the House of Lords in order to ensure proper accountability.

88. Lord Falconer pointed out that the most desirable accountability arrangements for the post depend upon its functions. So, for example, he argued that if some of the ministerial functions were removed from the Attorney General and he "instead does legal advice and the superintending prosecution and the public interest roles only, which are things where instead of doing it on a basis where there are political choices to make but there are only legal choices, I think there are two possible models, one where he is not in Parliament and not accountable because he is perceived to be separate".[160] He continued, "in some ways being out of Parliament gives him greater separation from the politicians...The other is where he is in Parliament, as long as he is the Attorney General, in which case he is answerable for issues like legal advice or making decisions about prosecutions, but it is a different sort of accountability to normal ministers…Being in Parliament makes him accountable, makes him part of the group and to some extent he is superintending them".[161] Both the desirability and appropriateness of particular accountability arrangements should be dependent upon the roles and functions the Attorney General is to perform.

INSIDE OR OUTSIDE PARLIAMENT?

89. There was a general consensus in the evidence that we received in support of the Attorney General (in the current form of the office) being accountable to Parliament. Lord Mackay of Clashfern argued that "the personal accountability of an individual to Parliament for the way he conducts public office is an important principle of our constitutional law and to undervalue it would be a great mistake and likely to undermine the integrity of our system in the longer term".[162] Lord Mayhew, speaking in the House of Lords on the 1 February 2007, said that the Attorney General "must be accountable to Parliament if there is to be maximum trust or at least minimum scepticism".[163] In response to the question of "whether you want accountability or whether you want some distance and separation",[164] Lord Goldsmith responded that in his judgement "being accountable is better".[165]

90. However, at present, the extent of the Law Officers accountability to Parliament is heavily circumscribed. Parliamentary Questions relating to legal advice are not normally answered — unless the Government (as the notional "client") decides otherwise.[166] The relevant Select Committee which includes the Attorney General within its remit (at the time of writing, the Home Affairs Committee) may only inquire into the administration and expenditure of his office and related legal departments. Individual cases and appointments and advice given within Government by the Law Officers are specifically excluded. The sub judice rule, which restricts debate in relation to cases proceeding through the courts, also severely limits the extent to which the work of the Law Officers is subject to scrutiny.

91. Lord Goldsmith acknowledged that the accountability of the Attorney General before Parliament and especially the House of Commons could be improved, and suggested that this could be achieved by effective scrutiny by a Select Committee.[167] In oral evidence to us, the Attorney General said: "there is no Parliamentary committee specifically charged with scrutinising the work of my office...I can see value in such scrutiny by a suitably well informed Select Committee".[168] He acknowledged, however, that there would be some limitations in relation to "current criminal cases and national security issues," but continued that "such an arrangement could significantly enhance accountability for, and understanding of, the Attorney General's role".[169] We see no need to set up a Select Committee solely to deal with the Law Officers' Department, when scrutiny of the Law Officers could be undertaken by the Committee responsible for the Ministry of Justice.

A MEMBER OF THE COMMONS OR LORDS?

92. There was no general agreement as to which House the Attorney General—if he or she were to remain in Parliament—should belong. Lord Goldsmith argued that the Attorney General, as a rule, should be a Member of House of Lords, he said "it is desirable that the Government's chief legal adviser should be as free as possible from personal conflicts of interest...the Attorney General should not be faced with the need to defend a seat in the Commons".[170] David Pannick QC has argued that the "independence of the Attorney General demands security of tenure. Appointment for a period of five years irrespective of a change of government (and subject to removal, like a High Court judge, by Parliament) would ensure that no Attorney General need worry—or appear to be worried—by the prospect of the next reshuffle".[171] He argued therefore that the Attorney General should automatically be a Member of the House of Lords, but that he should "regularly report to the Constitutional Affairs Select Committee in the House of Commons".[172]

93. Other advantages to being a Member of the House of Lords were identified. Lord Mayhew agreed that in terms of the Attorney General being able to attend court, that this was a "trifle more easy if you are in the House of Lords rather than having a House of Commons constituency".[173] However, he added that "I think it is preferable by quite a distance that he should be in the House of Commons, the reasons being that the accountability to Parliament of the Attorney General seems to me to be absolutely key to the public confidence that anybody needs who exercises his jurisdiction".[174]

94. Lord Morris agreed, and quoted Sam Silkin's words of 1978 about the importance of accountability to the House of Commons: "to whom would the independent non-political law officer be accountable? If there were no minister through whom he could be accountable we should have to invent one and, if there were, we would have returned full circle, for accountability without control is meaningless and whatever minister was answerable for an independent law officer would in practice have to control him, else we should have the semblance of accountability and not the reality, and in my experience there is no more potent weapon in a democratic society than the reality of accountability to Parliament".[175] Lord Morris added: "He is the head of the Treasury Solicitors, they are answerable to him; he has standing counsel both in civil matters and crime; and he has his own 'Treasury devil' who is a very senior lawyer, and he has to take the broader view which includes the national interest. For all those reasons—and many...I think it would be a sorry day if we lost the accountable person answerable to Parliament, and…preferably, without any disrespect to present holders or previous holders of the office, to the House of Commons. It is the House of Commons that we should aim to get someone answerable to".[176]

95. In defence of the current position, Lord Goldsmith stated "once the Law Officers are in different Houses the nature of the job of Solicitor General is quite different from what it was before 1997, with the Solicitor General becoming in effect a replica in the Commons of the Attorney General in the Lords".[177] Furthermore, Lord Boyd stated that it might not always be possible to get someone from the Commons, mainly because of a lack of qualified lawyers in the Commons. Indeed, Professor Jowell noted that in 1964 there were 100 barristers in the Commons but that this number had fallen to only 34 by 2005, even though during that time the profession itself had increased its numbers five-fold.[178] Lord Boyd continued "accordingly consideration might be given to allowing the Attorney, when a Member of the House of Lords, to address the House of Commons and answer questions in the House."[179] He added that he made this suggestion with "some diffidence" as he appreciated "that may have wider constitutional implications and may offend some sensitivities of the House".[180]

96. We have not given detailed consideration to the role of the Solicitor General, but our recommendations are not based on the idea that the Solicitor General should continue to act as a representative of the Attorney General in the Commons, if the Attorney General becomes a non-political legal adviser. That would be to confuse the line of accountability, and it would seem more appropriate for the Solicitor General's role, if it remains, to be that of deputy to the non-political Attorney General, and to be undertaken by a career lawyer.

ALTERNATIVE MODELS OF PARLIAMENTARY ACCOUNTABILITY

97. It does not necessarily follow that in order to be accountable to Parliament the Attorney General has to be a Member of either the Commons or the Lords. There are a variety of models, including those for the Parliamentary Ombudsmen and the Electoral Commission, who remain accountable to Parliament without being a Member of either House. Another interesting example is that of the Lord Advocate in Scotland, who, although not an elected Member of the Scottish Parliament, and therefore without voting rights, is held accountable to the Scottish Parliament as she is a Member of the Scottish Executive.[181] Both Lord Morris and Lord Mayhew rejected these other models as being inappropriate for the Attorney General. Lord Mayhew of Twysden said: "I think that the controversiality of his decision and the fact that it impinges upon individual liberty is such that most Members of the House of Commons in my time would have regarded it as very much second best to be able to have him only in a Select Committee".[182]

98. Lord Morris of Aberavon made the point that the Ombudsman cannot stand at the Bar of the House and answer questions, which was perceived to be the "crucial test."[183] Lord Mayhew of Twysden agreed, noting that in his experience his appearance at the dispatch box was crucial to satisfy the House that they had received "an honest explanation of a difficult decision."[184] In this context, he argued "having the organ grinder there is absolutely essential; monkeys would have been regarded as inadequate I think".[185] He added: "I do not see how he can be accountable to the Parliament unless he is a Member of it, and I think it is absolutely essential for public confidence reasons that he should be".[186]

99. However, in his oral evidence to the Committee, Lord Falconer questioned the basis upon which accountability to Parliament was regarded as such a necessity. While he acknowledged that there was of course, "considerable merit in being possible to question in parliament, either Lords or Commons, the Attorney General on decisions such as BAE if that is a decision that he had taken," he added "on the other hand, if the position is that these sorts of decisions, either referred to legal advice or prosecutions, are to be taken on a quasi-judicial basis, they are being taken in effect—whether it be the giving of advice or the forming of a view about whether a prosecution should go ahead—on a quasi-judicial basis".[187] He continued therefore "in one sense, that is not particularly a matter where accountability is so critical. Politicians get advice a lot of the time and there is a difference between the decisions they make on the basis of that advice and the quality of advice that they get".[188]

100. We believe that the issue of accountability is key. The central cause of dissatisfaction with the role of Attorney General stems from the fact that the current arrangements blur the distinction between action taken by the Attorney General as a minister and action taken by the Attorney General as a legal adviser. This is more than just a presentational problem. The office should be reformed so that the public and Parliament can be clear about the basis on which decisions are taken. Parliament and the public have the right to be able to identify an audit trail which shows whether a decision is taken on a technical, legal basis or whether the decision as a political one. If a decision has been taken on the basis of political instructions, it is ministers who should take responsibility and be accountable for those instructions.

93 University of Essex Clifford Chance Lecture, Judicial Independence not Judicial Isolation, 26 April 2007 Back

94 For example see Ev 49. Back

95 Attorney General, The Role of the Attorney General in Changed Constitutional Circumstances, Birmingham College of Law. 29 November 2006, p. 16 Back

96 Ibid Back

97 Attorney General, The Role of the Attorney General in Changed Constitutional Circumstances, Birmingham College of Law. 29 November 2006, p. 17 Back

98 Ibid Back

99 Q 136 Back

100 Attorney General, The Role of the Attorney General in Changed Constitutional Circumstances, Birmingham College of Law. 29 November 2006, p. 17 Back

101 The Economist, 10February 2007, p35. See also Jeffrey Jowell QC, Politics and the Law: Constitutional Balance or Institutional Confusion , the JUSTICE Tom Sargant Memorial Annual Lecture, 17 October 2006, p 14 Back

102 Q 133 Back

103 Q 132 Back

104 Q 156 Back