Select Committee on Justice Fourth Report


This Report examines the draft Constitutional Renewal Bill to see how far its provisions put into effect the recommendations of the previous Report of our predecessor Committee (the Constitutional Affairs Committee) on the Constitutional Role of the Attorney General and whether they are likely to achieve the target of enhancing public confidence in the office of the Attorney General.[1]

The Draft Bill makes no substantial change to the current situation. The Attorney General remains both chief legal adviser to the Government and a Government minister. The post's relations with the Directors (DPP; Director of the SFO; Director of the Customs and Revenue Prosecution Service) are defined by an (as yet) unwritten "protocol". We are concerned about the terms on which the Directors serve and their guaranteed independence. There is no justification for giving the Attorney General power to halt investigations by the Serious Fraud Office; the powers to halt actions by the Directors of the prosecuting authorities should be uniform.

The accountability of the Attorney General remains limited - it is not clear, for example, how the content of the new Annual Reports to be made under the Draft Bill will improve on current Annual Reports. In addition, reports on directions not to prosecute (or to the SFO not to investigate individual cases) are unlikely to create greater accountability, given the limits on the information which they will contain.

We favour a statutory duty being placed on ministers to observe the Rule of Law.

The question of publishing the Attorney General's legal advice is difficult. But we note the scope for enhancing public confidence if it were to become the practice to publish all or most of an advice where it is referred to in support of a political case being put forward by the Government.

The main problem with maintaining public confidence in the office of the Attorney General arises from combining the functions of legal adviser with ministerial functions; while we acknowledge that it is difficult to draw the line between legal and political considerations, and that these have to be balanced with care in particular cases, we believe that transparency requires separating the political functions of the Attorney General from the legal functions.

The Draft Bill fails to achieve the purpose given to constitutional reform by the Prime Minister: it gives greater power to the Executive; and it does not add to transparency.

1   Constitutional Affairs Committee, Fifth Report of Session 2006-07, Constitutional Role of the Attorney General, HC 306 Back

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Prepared 24 June 2008