Select Committee on Constitutional Affairs Fifth Report

Conclusions and recommendations

1.  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. (Paragraph 24)

2.  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. (Paragraph 34)

3.  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. (Paragraph 42)

4.  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. (Paragraph 54)

5.   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. (Paragraph 55)

6.  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. (Paragraph 56)

7.  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. (Paragraph 63)

8.  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. (Paragraph 65)

9.  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. (Paragraph 72)

10.  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. (Paragraph 76)

11.  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. (Paragraph 77)

12.  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. (Paragraph 82)

13.  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. (Paragraph 83)

14.  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. (Paragraph 86)

15.  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. (Paragraph 96)

16.  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. (Paragraph 100)

17.  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. (Paragraph 104)

18.  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. (Paragraph 105)

19.  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. (Paragraph 107)

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