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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