Select Committee on Justice Fourth Report

1  Introduction


1.  On 17 July 2007, the Constitutional Affairs Committee (re-named Justice Committee on 6 November 2007) reported on The Constitutional Role of the Attorney General.[2] It concluded that there were "inherent tensions in combining ministerial and political functions, on the one hand, and the provision of independent legal advice and superintendence of the prosecution services, on the other hand, within one office".[3] The Report of our predecessor Committee recommended that "the current duties of the Attorney General be split in two: the purely legal functions should be carried out by an official who is outside party political life; the ministerial duties should be carried out by a minister in the Ministry of Justice".[4]

2.  The role of the Attorney General in three particularly controversial matters highlighted concerns in relation to the office: advice on the legality of invading Iraq; potential prosecutions in the "cash for honours" case; and the decision to hold investigations by the Serious Fraud Office into BAE Systems.[5] As a result of these three cases, public confidence in the office of the Attorney General became a major political issue.

3.  The House of Lords Select Committee on the Constitution reported in April 2008 on Reform of the Office of Attorney General.[6] This was a useful examination of the arguments for and against reform of various aspects of the Office of Attorney General. It was also a helpful collection of a range of evidence on which we have relied when preparing this Report.

4.  In July 2007 the Prime Minister launched his Green paper on the Governance of Britain. The goals set by the Prime Minister for the constitutional reforms were ambitious:

"We want to forge a new relationship between government and citizen, and begin the journey towards a new constitutional settlement - a settlement that entrusts Parliament and the people with more power. The proposals published in this Green Paper seek to address two fundamental questions: how should we hold power accountable, and how should we uphold and enhance the rights and responsibilities of the citizen?"[7]

5.  The Government's main concern in relation to the office of Attorney General was to restore public confidence in the role, following the controversies mentioned above. The Governance of Britain Green Paper stated that." The Government is fully committed to enhancing public confidence in the office of the Attorney General".[8]

6.  Following the Green Paper, in July 2007 the Government issued a consultation paper on the role of the Attorney General, which asked whether:

  • the Attorney General should continue to be both the Government's chief legal adviser and a Government Minister
  • the Attorney General should remain as superintending Minister for the prosecution authorities
  • the legal advice of the Attorney General should be made public
  • the Attorney General should attend Cabinet only where necessary to give legal advice
  • a parliamentary select committee should be established specifically to scrutinise the Attorney General. [9]

7.  There were 52 written responses to the Government's consultation. Of those who responded on this point, 27 out of 38 favoured the Attorney General remaining as the chief legal adviser to the government, and continuing to be a Minister. There was also strong support for the Attorney retaining the function of superintending the main prosecution authorities (Crown Prosecution Service, Serious Fraud Office, and Revenue and Customs). The majority of respondents also favoured the Attorney General attending Cabinet only when necessary to provide legal advice, and retaining a general presumption that the Attorney's legal advice should not be disclosed.[10]

8.  The Government responded to our predecessor Committee's Report in January 2008. It was not supportive of the radical changes advocated in that Report. It summarised the responses to the Government consultation as follows:

"Overall, most respondents counselled against major structural change, taking the view that "mistaken perception is a weak foundation on which to base reform" and that "most of the institutional reforms [proposed] are neither necessary nor desirable, and would not significantly improve the political independence and political accountability of prosecutorial decision-making". Hence most respondents thought the Attorney General should remain a Government Minister whilst retaining the role of the Government's chief legal adviser and Ministerial responsibility for the prosecuting authorities."[11]

9.  In March 2008 the Government presented its White Paper on the Governance of Britain, the Draft Constitutional Renewal Bill and an analysis of related consultations on various matters, including the role of the Attorney General.[12]

Procedure for scrutiny

10.  The Draft Constitutional Reform Bill was set down to be examined by a Joint Committee. We note the recent comments of the Liaison Committee in relation to the practice of decisions to refer a Draft Bill to a Joint Committee without proper consultation with the relevant House of Commons departmental select committee:

While we recognise that some draft bills will be particularly suited to scrutiny by joint committees, it is for the House, not the Executive, to assess the most effective form of scrutiny, and we object strongly to the fact that the Government has sought to pre-empt the House's consideration of how to scrutinise draft bills by bringing forward motions for the appointment of joint committees without proper consultation. We reiterate the comment of our predecessor committee in 2005: there should be a presumption in favour of draft bills going to departmental select committees for pre-legislative scrutiny, where they are ready and willing to undertake this.[13]

We concur with the views of the Liaison Committee and reject the assumption that the Government should decide the means by which Draft Bills are scrutinised.

11.  Notwithstanding the decision to refer the Draft Bill to a Joint Committee, the Public Administration Select Committee examined parts of the Draft Bill and the accompanying White Paper relating to the Civil Service, lawmaking powers, treaties, passports and the royal prerogative. It published its Report on Wednesday 4 June.[14]

12.  In consultation with representatives of the Government and colleagues on the Joint Committee on the Bill, we decided to carry out an inquiry into the provisions in the Draft Bill relating to the Attorney General in order to follow on from the work of our predecessor Committee. We note that the Joint Committee has also been taking evidence on these provisions. We have co-operated with them to the full and exchanged the written evidence which both Committees have received. Our inquiry has been a short one, in order to complement the work of the Joint Committee and contribute our views to the process of scrutiny of the Draft Bill within the challenging timetable set for the completion of their work. The main part of the Joint Committee evidence on the provisions affecting the Attorney General will be taken after completion of our inquiry, but we note the useful evidence taken by them so far.[15]

13.  We would like to express our gratitude to colleagues on the Joint Committee for their co-operation and to those who gave us oral and written evidence.[16]

Purpose of the report

14.  Our inquiry did not range across all provisions of the Draft Bill. We concentrated solely on the provisions relating to the Attorney General, in the light of our predecessor Committee's previous Report.

15.  The purpose of this Report is:

Constitutional Affairs Committee, Fifth Report of Session 2006-07, Constitutional Role of the Attorney General, HC 306; the Constitutional Affairs Committee operated as the Justice Committee from the creation of the Ministry of Justice on 9 May 2007. We were formally re-named with an extended membership on 6 November 2007. Back

3   Ibid., Summary Back

4   Ibid., Summary Back

5   At the time of writing, this case is sub judice Back

6   Seventh Report of Session 2007-08, HL Paper 93 Back

7   Ministry of Justice, The Governance of Britain, July 2007 Cm 7170, p 5 Back

8   Ministry of Justice, The Governance of Britain -Constitutional Renewal, March 2008 Cm 7342-I, para 32. Back

9   Attorney General, The Governance of Britain, A Consultation on the Role of the Attorney General, July 2007, Cm 7192 Back

10   Attorney General, The Governance of Britain, A Consultation on the Role of the Attorney General, July 2007 Cm 7342-III, paras 70 & 84 Back

11   Justice Committee, Second Special Report of Session 2007-08, Constitutional Role of the Attorney General: Government Response to Committee's Fifth Report of Session 2006-07, HC 242, p1-2 Back

12   Ministry of Justice, Cm 7342-I,-II, and -III Back

13   Liaison Committee, Third Report of Session 2007-08, The work of committees in 2007, HC 427, para 25; and see Liaison Committee, First Report of Session 2004-05, Annual Report for 2004, HC 419, para 38  Back

14   Public Administration Select Committee, Tenth Report of Session 2007-08, Constitutional Renewal: Draft Bill and White Paper, HC 499 Back

15   Uncorrected transcripts of evidence taken before the Joint Committee on the Draft Bill, HC 551-i-viii. Back

16   See p34  Back

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Prepared 24 June 2008