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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