House of Commons - Justice

Select Committee on Justice Fourth Report

2 Duties of the Attorney General

16. Much of the debate about the duties of the Attorney General has focused on the office rather than on the functions to be carried out by the office holder. In this report we wish to concentrate solely on the functions of the Attorney General and identify by what sort of office holder they would best be carried out. We are concerned with the question of who exercises the various powers, not with the question of who should have the title of Attorney General. We set out here a brief account of the current duties of the Attorney General along with a description of the related conclusions and recommendations made by our predecessor Committee, which form the basis of our assessment of the Government's proposals.

Chief Legal Adviser

17. The chief role of the Attorney General is that of the Government's in-house legal adviser. This role is combined with the role of a Minister and a politician who follows the party whip. Until comparatively recently, the Attorney General was expected to be able to advise on a wide range of matters based on personal knowledge of the law. In reality, much of this advice is nowadays prepared by civil servants who are expert lawyers in a particular field, for example EU law. The Attorney General may also consult specialist counsel when necessary. The Attorney is responsible for the advice, which is usually not made public.

18. The Attorney General has usually been a senior barrister of considerable standing in the profession as well as a senior politician. As such, he has provided a connection between the law and politics. It is noticeable that nowadays the demands of both legal and political work mean that it is almost impossible for a senior lawyer to maintain a sufficiently active practice to take up the role of the Attorney General in the traditional way, while serving as a Member of Parliament. In recent years, the Attorney General has been a Member of the House of Lords. This represents a major change to the role of the Attorney General, who previously as a Member of this House had the advantage of close contact with colleagues in both the elected House and the legal profession. It has been left to the Solicitor General to answer for the Law Officers in the House of Commons.

19. Rt Hon Lord Falconer of Thoroton QC, when giving oral evidence to the Joint Committee on the Draft Bill, commented on the dual nature of the Attorney General's advice:

In relation to … the use of force … the Attorney General's advice is effectively definitive because it is never going to come to court as to whether or not the advice on whether force was used was justified. That puts upon the Attorney General an incredible onus to give of his best in relation to what the advice has to be as his genuine view. There he is almost like a judge. There will be other issues where it is quite legitimate for the Attorney General to say, "We are being sued; it is best that the government take these defences, I am not quite sure whether we will win or lose." Again, he has to think about what is in the best interests of the government, but he has to give objectively his best advice. Whichever it is he has to objectively consider what is the right advice to give, and that is a function that I think is not at all political.[17]

20. In our predecessor Committee's Report we saw no reason why the role of legal adviser to the Government should be carried out by a political appointee, or a member of the governing party.[18]

Superintendence of Prosecutions

21. The Attorney General has a number of functions in relation to criminal proceedings, which include:

a) The requirement for consent to prosecute certain categories of criminal offences, such as those relating to Official Secrets, corruption, explosives, incitement to racial hatred, and certain terrorism offences with overseas connections.

b) The power to refer unduly lenient sentences to the Court of Appeal.

c) The power to terminate criminal proceedings on indictment by issuing a nolle prosequi.

d) The power to refer points of law in criminal cases to the Court of Appeal.

22. The Attorney General is also responsible by statute for the superintendence of the main prosecuting authorities: the Crown Prosecution Service (CPS), Serious Fraud Office (SFO), Revenue and Customs Prosecution Office (RCPO) and the Director of Public Prosecutions in Northern Ireland.[19] This is by nature a ministerial function, and the Attorney General and Solicitor General are held to account in Parliament for the effective management of the services and their use of resources.

23. Rt Hon Lord Goldsmith QC, when he was Attorney General, suggested that 'superintendence' encompassed:

"setting the strategy for the organisation; responsibility for the overall policies of the prosecuting authorities, including prosecution policy in general; responsibility for the overall 'effective and efficient administration' of those authorities, a right for the Attorney General to be consulted and informed about difficult, sensitive and high profile cases; but not, in practice, responsibility for every individual prosecution decision, or for the day to day running of the organisation."[20]

24. The current Code for Crown Prosecutors identifies a two-stage test as to whether prosecutors should proceed with a prosecution. The first is the evidential test, which asks whether there is enough evidence to secure a conviction. The second is that a prosecution must be in the public interest.[21] The CPS code states that:

"the public interest must be considered in each case where there is enough evidence to provide a realistic prospect of conviction. Although there may be public interest factors against prosecution in a particular case, often the prosecution should go ahead and those factors should be put to the court for consideration when sentence is being passed. A prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or it appears more appropriate in all the circumstances of the case to divert the person from prosecution."[22]

25. The Attorney General is the arbiter of "public interest" when deciding whether or not to continue with a prosecution.[23]

26. Our predecessor Committee's Report on the Constitutional Role of the Attorney General recommended separation of the ministerial functions from the responsibility for prosecutions.[24] It said that depoliticising the prosecution role should be one of the central purposes of reform, not least in order to restore public confidence in the role of Attorney General.[25]

Political Role

CRIMINAL JUSTICE POLICY

27. The Attorney General shares responsibility for the criminal justice system in England and Wales with the Secretary of State for Justice and the Home Secretary. The Attorney General sits on the National Criminal Justice Board and has joint responsibility for the cross departmental Office for Criminal Justice Reform, which is now based in the Ministry of Justice.

28. Our predecessor Committee's Report on the Constitutional Role of the Attorney General concluded that the Attorney General's ministerial functions relating to criminal justice policy should be exercised by a minister in the Ministry of Justice.[26]

ATTENDANCE AT CABINET

29. There was widespread agreement among those questioned in the course of our predecessor Committee's previous inquiry into the Role of the Attorney General, and among many witnesses subsequently, that the Attorney General should not regularly attend Cabinet meetings. The view of Lord Falconer when he gave oral evidence to the Joint Committee on the Draft Bill was typical:

"I do not think that the Attorney General should attend meetings of the Cabinet. I think the Attorney General should only attend the Cabinet to give the Cabinet legal advice as required, and he should not be a member of the Cabinet, obviously, on that basis. The reason I think that is because you need in relation to the Attorney General giving the advice to the Cabinet to make it clear that he is not part of that group, he is somebody advising that group, because only if he is somebody who is not part of that group can the advice be said to be objective."[27]

30. Our predecessor Committee recommended that the Attorney General should attend the Cabinet by invitation, and then only for the consideration of specific and relevant agenda items.[28] The arrangements for the Attorney General to attend Cabinet should be clear and specific to giving legal advice - the danger of the Attorney General participating generally in Cabinet policy-making is that it blurs the distinction which should be clearly maintained between the function of legal adviser and a member of the ministerial and political leadership.

17 Uncorrected transcript of oral evidence taken before the Joint Committee on the Draft Bill, on 21 May 2008, HC (2007-08) 551-iv: Q 198 Back

18 Constitutional Affairs Committee, Fifth Report of Session 2006-07, Constitutional Role of the Attorney General, HC 306, para 72 Back

19 Constitutional Affairs Committee, Fifth Report of Session 2006-07, Constitutional Role of the Attorney General, HC 306, Ev 58 Back

20 Constitutional Affairs Committee, Fifth Report of Session 2006-07, Constitutional Role of the Attorney General, HC 306, Ev 58; for a more detailed discussion see Joshua Rozenberg, 'The Director and the Attorney' in The Case for the Crown (1987), pp. 179-189; and see Q 217 of CASC Report Back

21 cps.gov.uk/victims_witnesses/codetest.html Back

22 cps.gov.uk/victims_witnesses/codetest.html Back

23 The classic statement of "public interest" was by Sir Hartley Shawcross in 1951: see HC Deb, 29 January 1951, column 681 Back

24 Constitutional Affairs Committee, Fifth Report of Session 2006-07, Constitutional Role of the Attorney General, HC 306, para 83 Back

25 Constitutional Affairs Committee, Fifth Report of Session 2006-07, Constitutional Role of the Attorney General, HC 306, para 104 Back

26 Constitutional Affairs Committee, Fifth Report of Session 2006-07, Constitutional Role of the Attorney General, HC 306, paras 83 &105 Back

27 Uncorrected transcript of Oral Evidence taken before the Joint Committee on the Draft Bill, on 21 May 2008, HC (2007-08) 551-iv, Q 202 Back

28 Constitutional Affairs Committee, Fifth Report of Session 2006-07, Constitutional Role of the Attorney General, HC 306, para 86 Back