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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