Select Committee on Constitutional Affairs Fifth Report

5  Conclusion

101. The role of the Attorney General has evolved over centuries. It developed at a time when there were sufficient members of the Bar of the right professional stature who were senior Members of the House of Commons. It also worked well when the law was less specialised—in the 19th century a senior lawyer could be held to 'know the law' in a way which is not possible today. Current conditions make this role untenable.

102. Other comparable jurisdictions have moved away from the English model. The Constitutional Reform Act 2005 and the creation of the Ministry of Justice in May 2007 have changed the legal and political landscape. The presence of the Attorney General in the House of Lords has altered the traditional status of the Attorney General as being both a senior Member of the Bar and of the House of Commons. In this sense, he or she is no longer at the junction between law and politics in the same way as before—a point effectively conceded by Lord Goldsmith when he was reluctant to be described as a politician.

103. The tensions which we have identified in our Report have been brought into sharp focus as a result of a series of recent controversial and high profile cases involving the Attorney General. The ending of the BAE Systems investigation and the Attorney General's potential role in deciding whether or not there will be prosecutions following the 'cash for honours' investigation, have raised serious public concerns about how independence and impartiality can be guaranteed in making such decisions. Therefore, reform is also required in order to restore public trust in the Attorney General's role.

104. In evaluating options for reform, this Report focused on addressing the question of what should be the role and function of the Attorney General. In answering this question, Lord Falconer, the then Lord Chancellor, identified three options: the status quo; somebody who is in either the Lords or the Commons but is a non-politician; and somebody who is not a politician, who is in neither House of Parliament and gives 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.[189] While Lord Goldsmith argued that the "advantages outweigh the disadvantages"[190] of the current arrangements, we disagree. We have concluded that the status quo is not an option, and on balance, we agree that de-politicising the prosecution role should be one of the central purposes of reform, not least in order to restore public confidence in the role.

105. This report identified several different models as to how this could be achieved. While not attempting to provide a detailed blueprint for reform or to prescribe a specific detailed model for reform, on balance we have concluded that legal decisions in prosecutions and the provision of legal advice should rest with someone who is appointed as a career lawyer, and who is not a politician or a member of the Government. The Attorney General's ministerial functions should be exercised by a minister in the Ministry of Justice. Where Ministers instruct the independent head of the prosecution service on public interest grounds, whether national security or other grounds, the Secretary of State for Justice would be accountable to Parliament for that instruction.

106. Furthermore, an Attorney General of this type should not be a party-political appointment, and should not, as a matter of course, attend Cabinet or be a member of either House of Parliament. He or she should attend Cabinet only in the capacity as legal adviser and only on specific agenda items. Parliamentary accountability of this very specific and clearly defined role could be achieved by a variety of mechanisms currently used to hold to account other officers of the House, for example the Ombudsmen or the Comptroller and Auditor General.

107. Reform of the office of the Attorney General is needed, and we welcome the fact that both the Prime Minister and the new Attorney General have indicated a willingness to engage in reform. Making the office fit for purpose in the 21st century is essential in developing a robust and independent prosecution service, and for the provision of legal advice to government which has the confidence and respect of politicians and the public alike. 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.

189   Q 160 Back

190   Q 44 Back

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Prepared 26 July 2007