Select Committee on Constitutional Affairs Written Evidence


Evidence submitted by the Rt Hon Lord Goodhart QC

  1.  I was, from 1999 until the beginning of the present session, the Liberal Democrat Shadow Lord Chancellor. In that capacity, I was actively involved in the passage of the Constitutional Reform Act 2005 through the House of Lords. As I have now become the Chairman of the House of Lords Select Committee on Delegated Powers, I have left the Liberal Democrat front bench. This submission therefore reflects my personal views and is not to be taken as the views of my party.

THE ATTORNEY GENERAL AND THE RULE OF LAW

  2.  The present inquiry starts with a review of the constitutional role of the Attorney General in relation to the upholding of the Rule of Law. The "Rule of Law" is an expression which has no single definition, and has a fairly flexible meaning. I would strongly recommend the Committee to read the outstanding lecture on the subject given by the Senior Law Lord, Lord Bingham of Cornhill, at Cambridge on 16 November 2006.

  3.  In relatively modem times, at any rate, responsibility for ensuring that the Government complies with the Rule of Law has in theory been divided between the Attorney General and the Lord Chancellor. It is the duty of the Attorney General, as the legal adviser to the Government, to advise it on the legality under national, and international law of actions which it is considering taking. Given the doctrine of Parliamentary sovereignty, a Government could lawfully place before Parliament a Bill which would contravene the Rule of Law. If this were to happen it would no doubt be the duty of the Attorney General to draw this to the attention of the Government.

  4.  The equivalent role of the Lord Chancellor, prior to the Constitutional Reform Act 2005, was informal and amorphous. Lord Chancellors have never been formal legal advisers to the Government but, as a senior member of the Cabinet with a distinguished legal career behind him, any comments by a Lord Chancellor would have carried considerable weight. The exercise of this power, however, seems to have varied between holders of the office. Lord Mackay of Clashfern said in a speech in the House of Lords that, while he never himself gave legal advice to the Government of which he was a member, he did on occasion point out issues on which he thought legal advice from other sources would be desirable. By contrast, colleagues who served in the Cabinet when Lord Elwyn Jones was Lord Chancellor have no recollection of his ever having raised any similar warning.

  5.  The Constitutional Reform Act 2005 does not alter the powers or duties of the Attorney General. However, it has greatly altered the responsibilities of the Lord Chancellor and has thereby had an indirect but important effect on the role of the Attorney General and on the relationship between him and the Lord Chancellor. The Act has placed an express obligation (sections 1 and 17) on the Lord Chancellor to respect the Rule of Law and (section 3), together with all other Ministers, to respect judicial independence. However, the effect of the Act as a whole is to convert the Lord Chancellor from being a Minister with a judicial as well as a political role (including the making of judicial appointments) and standing at a distance from mainstream politics into a straightforward departmental Minister who does not need to have a legal qualification and may sit in the House of Commons.

  6.  This is a change which I strongly support. However, it means that the standing of the Lord Chancellor to raise issues in Cabinet relating to the Rule of Law will be weakened, notwithstanding the creation of the statutory duties mentioned above. This means that it is important that more attention should be given to the role of the Attorney General in upholding the Rule of Law. In particular, steps need to be taken to uphold the independence of the office.

  7.  The Attorney General is, and must remain, an adviser to the Government and not to Parliament. He or she can not serve these two clients simultaneously without running into impossible problems of confidentiality and conflict of interest (though this would not necessarily exclude a procedure for parliamentary confirmation of the appointment). But steps can be taken to strengthen the independence of the office.

  8.  One important step has already been taken, though only on a temporary basis. This is that the Attorney General is a member of the House of Lords. Until 1997, both the English Law Officers were always members of the Commons. In 1997, a member of the House of Lords was appointed to be the Solicitor General, and subsequently a member of the House of Lords was appointed to be Attorney General, with the junior appointment returning to the Commons. This change seems to have been due originally to the increasing difficulty of finding MPs with sufficient legal experience and stature to be credible Law Officers, but in fact it makes a great deal of constitutional sense. It is desirable that the Government's chief legal adviser should be as free as possible from personal conflicts of interest. This means that the Attorney General should not be faced with the need to defend a seat in the Commons and should be in a position which will not lead to possible promotion within the Government. These conditions would be satisfied if the office is permanently held within the Lords. Reform of the Lords, unless the reform involves a wholly elected Second Chamber (which seems unlikely) would not prevent this.

  9.  An alternative could be that the office of the Attorney General, as in Ireland, should be entirely outside Parliament. There is certainly a case for this, but on balance I would prefer to retain the degree of Parliamentary accountability which is provided by the presence of the Attorney General in the Lords.

  10.  Changes in the functions of the Attorney General will also, almost inevitably, lead to changes in the role of the Solicitor General, so I believe that any inquiry into the constitutional role of the Attorney General must also consider the constitutional role of the Solicitor General. 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.

THE INTER-RELATIONSHIP BETWEEN THE ROLES OF THE ATTORNEY GENERAL AND THE LORD CHANCELLOR

  11.  The main conclusion from the above is that, following the 2005 Act, the main burden of upholding the Rule of Law should rest on the Attorney General rather than the Lord Chancellor, given that the latter will be primarily a departmental Minister who may have little personal knowledge of constitutional law. Obviously some coordination will be necessary, but this may be a second-order issue.

Is there a conflict between the Attorney General's role as head of prosecutions and his duties as a member of the Government?

  12.  It is obvious that there is a potential conflict. 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.

January 2007





 
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