House of Commons - Justice

Select Committee on Justice Fourth Report

3 Provisions in the Draft Bill

31. In line with the responses to the consultation, the Government concluded that the Attorney General should remain the Government's chief legal adviser, should remain a Minister, and therefore a member of one of the Houses of Parliament. In keeping with previous convention, the Attorney would attend Cabinet when required, although the White Paper notes that "The Attorney General's responsibilities in relation to the formulation of criminal justice policy…. may also necessitate attendance at Cabinet".[29] However, the present Attorney General told us that the Prime Minister had asked her to attend all Cabinet meetings unless prevented from doing so by other duties.[30]

32. The principal changes proposed in the Draft Bill are that:

the Attorney General may not give a direction to the prosecuting authorities in relation to an individual case (except in cases of national security)
the requirement to obtain the consent of the Attorney General to a prosecution in specified cases will, in general, be transferred to the DPP or specified prosecutors
the preparation of a statement ("protocol") of how the Attorney General and the Directors (i.e. the Director of Public Prosecutions, the Director of the Serious Fraud Office and the Director of the Revenue and Customs Prosecutions Office) are to exercise their functions in relation to each other, and the terms under which the Directors hold office
the Attorney General's power to halt a trial on indictment by entering a nolle prosequi will be abolished
the Attorney General must submit an annual report to Parliament.[31]

33. The main difficulty in relation to the role of the Attorney General is the division between the political and legal aspects of the post. This raises the question of the purpose of the Attorney General's role. We note that Professor Bradley, in his evidence to the Select Committee on the Constitution in the House of Lords, called for a restatement of the Attorney General's role.[32] We see considerable virtue in a firm statement of the extent and limits of the role and of the conventions.

34. The Attorney General's role should be more clearly defined and the conventions which affect the Office should be comprehensively set out. The Draft Bill provides an opportunity to do this.

35. The Draft Bill only partially puts into effect the recommendations made in our predecessor Committee's Report on the Constitutional Role of the Attorney General: the central issue is the division between political responsibilities, as exercised by a minister, and legal responsibilities which need to be carried out in a non-political way. Until this basic problem is dealt with in some way, the reasons for limited public confidence in the role of Attorney General will remain. Professor Vernon Bogdanor, giving evidence to the Joint Committee on the Bill, said:

"The public, I think, believe that the powers that are given to a politician will generally be used for political purposes and so the fewer those powers conflict the better, and I think the whole question of the Attorney General raises very fundamental problems about the separation of powers and about how the position of the Attorney General is compatible with the independence of other authorities such as the DPP and the SFIO; how it would make sense to have a minister who is responsible to Parliament but yet responsible for the working of bodies which are independent. There is a huge area of difficulty here which, frankly, I think the draft Bill does not confront."[33]

36. Although the Draft Bill removes a significant amount of responsibility in relation to prosecutions from the Attorney General to the non-political Director of Public Prosecutions, the Draft Bill makes no substantial change to the dual role of the Attorney General as a member of the Government and its chief legal adviser. It is that role which, as was noted by our predecessor Committee's Report on the Constitutional Role of the Attorney General, was the cause of much of the public criticism.[34] It can be argued that there is a general benefit in accepting that it is not always possible to split legal from political advice. However, one of the aims of the Draft Bill is to restore public confidence in the office of Attorney General by making it clear where responsibility lies.

37. This point was emphasised by Rt Hon Lord Falconer of Thoroton QC, the former Lord Chancellor, in oral evidence to the Joint Committee on the Draft Bill:

"I think if you are the Attorney General who is part of a group of politicians making decisions about should we stop a prosecution which the Prime Minister is very keen to stop - and there is no secret about that - I cannot envisage that the public out there do not think that the fact that you are part of that group has an influence on your decision. I would like to make it clear that I am not suggesting at all that that is what has happened, but the idea that the public do not think that you are - and this is not my word - part of the "gang" must have an impact on public perception."[35]

38. The creation of a clear "audit trail" depends on clear accountability for decision-making. Where advice is both legal and political and, because it has a legal aspect, it is unpublished, then accountability for the advice is not possible.

39. The Draft Bill only partly addresses the major problem identified in our predecessor Committee's Report on the Constitutional Role of the Attorney General: the difficulty of combining the political and legal duties of the Attorney General.

40. The Draft Bill does not provide for a clear split in the role to create a non-political legal adviser and refer the political duties to a minister in the Ministry of Justice; therefore the ambiguity of the Attorney General's position in the public eye remains. As a consequence the Draft Bill does not fully satisfy the concerns previously expressed by our predecessor Committee about the need to reform the office and restore public confidence in the office of Attorney General.

Superintendence of prosecutions

INDIVIDUAL DIRECTIONS

41. The Draft Bill removes the power of the Attorney General to give a direction in relation to an individual case.[36] This is to some extent a formalisation of the current procedure, where most decisions are taken independently by the Directors. However, it usefully makes explicit the responsibilities for decisions and adds transparency to the system. This goes in the direction of the core recommendations of the previous Report on the Constitutional Role of the Attorney General in removing decisions on the law from ministers.

42. The Draft Bill transfers powers over individual cases to the Directors, except where the Attorney General retains specific consent functions. We approve.

NATIONAL SECURITY

43. However, under the Draft Bill, as an exception to the general rule that the Attorney General cannot give a direction in relation to an individual case, the Attorney General has a statutory power to intervene to prevent or stop prosecutions for the purpose of safeguarding national security under Clauses 12 - 15. Additionally, and only in relation to the Serious Fraud Office, the Attorney General is empowered to give a direction to the Director of the Serious Fraud Office that no investigation of specified matters is to take place.[37]

44. The power to direct the Director of the Serious Fraud Office to halt investigations of particular matters is one of the potential areas in which there is scope for considerable political controversy in the exercise of the Attorney General's functions. When we examined the Attorney General about this, her justification was based on the fact that the SFO had been established with the power to carry out investigations, so the whole of the SFO work was placed under the same provisions.[38] This justification is insufficient. There is no reason to treat serious fraud differently from other crimes. It would be more logical to give the Attorney General the same powers in relation to each of the prosecution authorities.

45. We see no reason to give the Attorney General special powers to direct the SFO to discontinue investigations (as opposed to proceedings). The work of the SFO should be placed on the same footing in this respect as the other prosecution agencies.

46. Where the Attorney General has given a direction or withdrawn a direction, he or she must prepare a Report for Parliament on the exercise of this power as soon as is practicable (or as soon as the Attorney General is "satisfied" that no further delays are necessary for the purpose of safeguarding national security). Information need not be included in a report if the Attorney General is "satisfied" that:

A claim to legal professional privilege could be maintained in respect of the information in legal proceedings
inclusion of the information would prejudice to national security or seriously prejudice international relations or
the information would prejudice the investigation of a suspected offence or proceedings before any court.[39]

47. The accompanying White Paper on the Governance of Britain claims that the Report to Parliament will make clear who took the decision in such exceptional cases and therefore who should be held to account.[40] It remains to be seen whether most circumstances where use of the power to give a direction to halt a prosecution or SFO investigation is warranted would not also be affected by the exemptions under Clause 14. We note also that one of the reasons for excluding information from the Report is to protect international relations. This is a significant step further than national security on which the basic power to give a direction is based.

48. In addition, the Attorney General has the power to acquire information for the purposes of intervening to safeguard national security. A person who without reasonable excuse fails to comply with the requirement to provide information within a specified period is guilty of an offence.[41]

49. JUSTICE suggests that the powers of the Directors should extend to decision-making on all matters even those relating to consideration of national security. In its view, the Attorney General's powers should be restricted to the making of a submission on national security in an appropriate case to the relevant Director.[42]

50. It is not self-evident that the Attorney General is the appropriate Minister to direct that a prosecution should be stopped on national security grounds. The Attorney General does not have ministerial responsibility for national security or detailed knowledge of such matters. It would be the Prime Minister, assisted by the Foreign, Home or Defence Secretaries, who would make a judgment that proceedings in a particular case pose a danger to national security and it is therefore the Prime Minister who should account to Parliament for that judgment. When we questioned the present Attorney General on this point, we were not convinced that any Attorney General would substitute his or her judgment on national security so as to override that of the Prime Minister by whom they were appointed.[43]

51. Professor Jowell in his evidence argued that sections 12 and 13 of the Draft Bill (powers to halt prosecutions or investigations) "fly in the face of the fundamental constitutional principles of the rule of law and separation of powers".[44] He also points out that the provision provides a very broad discretion to the Attorney General (who will act "if satisfied" of the need to do so). Clause 13 (5) (a) seeks to prevent any possibility of judicial review by providing that a certificate signed by a Minister of the Crown certifying that the Attorney's direction was "necessary for that purpose" (i.e. to safeguard national security) shall be "final and conclusive". Taken together, these powers allow the Attorney General to make a decision which is excluded from examination by the courts. Clause 13 (5) (a) is effectively an "ouster" clause, which in practical terms sets aside the jurisdiction of the courts. Professor Jowell says: "These provisions brazenly seek to evade … recent developments of constitutional principle."[45] We see no case for the inclusion of the ouster clause.

52. Our predecessor Committee concluded in its Report on the Constitutional Role of the Attorney General that there should be power to give directions to end prosecutions in the national interest; there is a clear case for such a power, whether it is exercised by the Directors or by the Attorney General. However, the provisions relating to giving directions to halt proceedings or investigations by the SFO give rise to particular concerns:

The scope of the powers is too broad, since they are based on the Attorney General being "satisfied" which, in conjunction with the power to issue a certificate which is conclusive evidence of the need to make the direction, allows the Attorney General (and the Government on whose behalf the Attorney General acts) to take action in a controversial area without accountability in the courts.
The accountability to Parliament cannot be a sufficient safeguard since the Reports to Parliament are unlikely to contain all the information relating to making the decision to halt proceedings or an investigation.

PROTOCOL

53. The relations between the Attorney General and the Directors of the three prosecution agencies will be governed by a protocol. Clause 3 provides that the Attorney General must, in consultation with the Directors, prepare a protocol stating how the Attorney General and the Directors are to exercise their functions in relation to each other. This protocol is to be published and reported to Parliament.[46]

54. The protocol is intended as an important component in a package of proposed reforms to the Attorney General's role. In a letter to the Chairman of the Committee the Attorney General said that the aim of the protocol was to:

set out in an authoritative public document and in more detail than hitherto how the statutory relationship of "superintendence" between the Attorney General and the prosecuting authorities is to operate. It will provide greater clarity, both as between the Attorney General and the Directors themselves, and for Parliament and the public at large, about the respective roles and responsibilities of the Attorney General and Directors. The protocol will need to be sufficiently specific in its terms to meet his aim of achieving greater clarity, whilst being sufficiently flexible to meet the varying activities workloads of the prosecuting authorities over time and so as not to require constant amendment (although the protocol may of course be revised and clause 3 (4) of the draft Bill requires the Attorney General to keep it under review from time to time).[47]

55. Officials in the Attorney General's Office and the three prosecuting departments are discussing what the proposed protocol should say. Clause 3(3) of the draft Bill sets out the general area which the protocol may cover. The Attorney General envisages that the protocol will include provisions about:

The setting of the strategic direction for the prosecuting authorities, the setting of their objectives and the drawing up of their business plans
The ways in which the prosecuting authorities report to the Attorney General on their activities.
The circumstances and ways in which the prosecuting authorities are to consult the Attorney General or provide her/him with information
The role of the Attorney General and the prosecuting authorities in relation to prosecution casework, including the handling of those cases in which the Attorney's statutory consent is required for a prosecution; and the handling of any case involving a direction by the Attorney General on national security grounds (clause 12 of the draft Bill)
The roles of the Attorney General and the prosecuting authorities in contributing to criminal justice policy to ensure (among other things) it properly reflects the impact on prosecutorial operational practice
The Attorney General's accountability to Parliament for the work of the prosecuting authorities, and how the Directors support the Attorney in that role.

56. Professor Jowell that it was "not at all clear whether this protocol is designed to strengthen or weaken the Attorney's duty to uphold the rule of law".[48] He noted that the Attorney General's political role was reinforced by the provision which requires the protocol to set out the roles of the Attorney General and the Directors in relation to "criminal justice policy".[49]

57. This document is clearly crucial to the working relationship between the Attorney General and the prosecuting authorities. It will set the tone for the practical working relations and to a great extent influence the real independence of the three Directors.

58. We cannot comment on the draft of the protocol, since it is not yet prepared. We very much regret that the Draft Bill has been put before Parliament for consideration before a draft of such an important document is ready. The protocol should be published well before the Bill is introduced in the Autumn.

PROVISIONS FOR TENURE OF OFFICE OF DIRECTORS

59. The Director of Public Prosecutions, the Director of the Serious Fraud Office and the Director of Revenue and Customs Prosecutions will be given fixed-term appointments to enhance their independence.

60. The Council of Europe's Recommendation (2000) 19 of the Committee of Ministers to member states on the role of public prosecution in the criminal justice system, (section 5), stipulates that:

"States should take measures to ensure that:

a. the recruitment, the promotion and the transfer of public prosecutors are carried out according to fair and impartial procedures …

[…]

e. disciplinary proceedings against public prosecutors are governed by law and should guarantee a fair and objective evaluation and decision which should be subject to independent and impartial review".

61. Professor Jowell in his memorandum says that Clauses 4 to 6 of the Draft Bill which deal with the Attorney General's powers over the tenure over the Director of Public Prosecutions, the Director of the Serious Fraud Office and the Director of Revenue and Customs Prosecutions "enhance the appearance, and indeed the realistic possibility, of political control of the prosecutorial system". The Council of Europe recommends a much more transparent review of the tenure of public prosecutors that these sections provide.[50]

62. In oral evidence Professor Jowell expanded on this point:

"Section 3 provides for the protocol and then provides that the protocol may include various matters and that the Directors and the Attorney must "have regard to the protocol" and then we get sections 4 to 6 which provide that "the Attorney may remove the Directors from office if he is satisfied that they are unable, unfit or unwilling to carry out their functions." Then it goes on to define "unfit" as "failing to have regard to the duty to obey the protocol". We do not know what could be in the protocol."[51]

Professor Jowell thought that "failing to have regard to the duty to obey the protocol" could mean anything and gave "an easy opportunity for an Attorney to dismiss a prosecutor".[52]

63. Although the Directors do not have to obey the protocol in each and every case they are bound to have regard to it. The Draft Bill gives significant power to the Attorney General to dismiss a Director on the basis of failure to have regard to the duty to obey an, as yet unwritten, protocol. This leaves the position of the Directors unclear. The Directors ought to have clearer security of tenure than is apparent in the Draft Bill.

ATTORNEY GENERAL'S PROSECUTION CONSENT FUNCTIONS

64. The Government has "taken on board the views of respondents (to its consultation), the majority of whom have thought most consent powers should be transferred to the prosecuting authorities, and considered the recommendations of the Law Commission in this area."[53] As a result, the Government proposes the following reforms in relation to the Attorney General giving consent to prosecutions:

in relation to offences where there is no pressing need for there to be a requirement to obtain consent (of the Attorney or another person), the requirement to obtain consent should be abolished;
in relation to a very small range of offences which are particularly likely to give rise to consideration of public policy or public interest (such as most Official Secrets Act offences and war crimes), the obligation to obtain the consent of the Attorney General should be retained; and
in relation to other offences, the power to consent should be transferred to the Director of Public Prosecutions or other appropriate Director.[54]

65. We approve of these principles and note that the Government is still examining precisely which of the above categories affect the Attorney General's consent function.[55] This reform is in line with the general approach of the previous Report on the Constitutional Role of the Attorney General. We approve of the proposed reform to the Attorney General's functions in relation to consent to prosecution.

ABOLITION OF NOLLE PROSEQUI

66. Nolle prosequi (the power to halt trials on indictment) will be abolished and replaced with powers to direct the halt of prosecutions in cases of national interest. This has been generally welcomed by commentators.[56] It is a power which is used in limited circumstances.[57]

67. The power is a historic one. There is little case law on it and the basis on which the power can be exercised has not been authoritatively defined. Since the establishment of statutory prosecuting authorities such as the CPS (who have powers to bring a prosecution to an end by a variety of mechanisms including discontinuance) the Attorney General's practice has tended to be to confine the use of the power in cases brought by a statutory prosecuting authority to situations where, after the indictment has been signed, it is found that the accused for reasons of ill health or other medical reason is unlikely ever to be fit to stand trial and there is no other way of disposing of the indictment. However the power is not confined by law to those cases. Often it is the prosecutor who asks the Attorney to enter a nolle, although on occasions the defence may apply for a nolle (usually where the prosecutor considers that the case should continue in the public interest). Where the defence makes the application, the Attorney General consults the prosecuting authority.

68. In theory, proceedings which are brought to an end by virtue of a nolle prosequi can be re-started, but in practice this is not done. This reform is in line with the general approach of our predecessor Committee's Report on the Constitutional Role of the Attorney General in that it will tend to transfer powers relating to prosecutions to the Directors. Abolition of nolle prosequi does, however, potentially leave a gap in provision for halting certain types of trial.

69. We are uncertain of the utility of the proposed abolition of the nolle prosequi, given that it is not clear by what it will be replaced. This reform is of little practical importance, given that it is so infrequently used, but it will in a small way remove some power over prosecutions from the Attorney General.

Accountability

ANNUAL REPORT

70. Under Clause 16(1), as soon as practicable after 4 April the Attorney General must lay before Parliament a Report on the exercise of his or her functions during the previous year. The Attorney General, under Clause 16(2), need not include information in an Annual Report if circumstances apply which cover the same exemptions as those set out in Clause 14 (3)(relating to Reports to Parliament on directions under section 12).

71. It is hard to gauge what the new Annual Report would add to the existing system. Without further information we are unable to reach a firm conclusion about whether it will significantly add to the process of accountability of the Attorney General.

ACCOUNTABILITY FOR LEGAL ADVICE

72. Part of the argument relating to accountability for the work of the Attorney General covered the question of whether legal advice should be made public. There are, of course, many circumstances where the Attorney General gives legal advice in matters of a high political controversy. This question has returned in relation to the provisions of the Draft Bill. We note the evidence given to the Joint Committee in relation to this question by Lord Falconer and Democratic Audit.[58]

73. The Government is entitled to Legal Professional Privilege in respect of the advice which it receives. It is for the Government, alone, as client to waive this right in a given case. The Attorney General cannot give any information about the legal advice given within Government. It is therefore meaningless to talk about 'accountability' (especially to Parliament) in relation to such legal advice. The Government, on the other hand, is accountable for how it uses the legal advice. As such, the notion of accountability is an irrelevance to the functions of the Government's legal adviser, but the true accountability is often blurred as the Government relies on legal advice which is not disclosed but which can give an apparent authority to its actions in an unspecified way.

74. This is not a straightforward issue. There are clearly circumstances where legal advice cannot be made public—where proceedings may be contemplated, for example. But where the Government relies on legal advice to support what is essentially a political argument, then the case for publication becomes overwhelming if public confidence is to be maintained in the role of the Attorney General.

75. 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.

REASONS FOR ATTORNEY GENERAL BEING A MEMBER OF EITHER HOUSE

76. Much emphasis has been placed on the need for the Attorney General to be a Member of either House of Parliament in order to be properly accountable. This was a major feature of the evidence put before us in the course of our predecessor Committee's inquiry into the Constitutional Role of the Attorney General.[59]

77. Professor Robert Hazell, when giving oral evidence to the Joint Committee on the Draft Bill about the Government's proposals, gave a typical expression of this point of view when he said:

"…I think the law officers have to be accountable, they have to be accountable to Parliament, and the best way for them to be directly accountable to Parliament is for them to be Members of Parliament, of either House."[60]

78. However, while it is clear that political accountability is appropriate for the ministerial functions exercised by the Attorney General (superintendence of the prosecuting authorities and involvement in criminal justice policy), it is not at all clear that such political accountability is appropriate or even possible for the function of the Government's legal adviser.

79. In the majority of the main common law jurisdictions, Attorneys General do not have ministerial responsibility for the development of criminal justice policy, and their offices are largely confined to the provision of legal advice and supervision of the system of criminal prosecutions.[61]In the course of our predecessor Committee's previous inquiry, we noted the interesting examples of Ireland and Scotland. The existence of a non-political Attorney General in Ireland demonstrates the potential for change in England and Wales. The position in Scotland is closer to that in England and Wales where the Lord Advocate is bound by the collective responsibility of the Executive, except in respect of retained functions. The Lord Advocate loses office like all other ministers if the Executive falls. However, the present Lord Advocate was reappointed and has served in Executives of different political colours.

80. The key question is whether a non-political office holder could perform some of the functions of the Attorney General, while other functions remained with the ministerial office holder, fully accountable to Parliament. If this split is carried out, the question of which office retained the title of Attorney General is a secondary one.

81. The Report of our predecessor Committee recommended that the provision of legal advice and legal decisions on prosecutions should rest with someone who was appointed as a career lawyer and who was not a politician while the Attorney General's ministerial functions should continue to be exercised by a minister. The Government has not found an alternative model which would offer the same degree of assurance to the public that legal advice and decisions are genuinely independent.

Continuing ministerial duties of the Attorney General

82. Various commentators have criticised the continuation of the split role of the Attorney General as a person with ministerial responsibilities relating to the formulation of criminal justice policy, with the Home Secretary and the Secretary of State for Justice, while at the same time combining this with the role of chief legal adviser to the Government and, in addition, with the function of superintending the Directors responsible for prosecutions.^.[62]

83. The justification for giving the Attorney General shared ministerial responsibility for the criminal justice system was expressed by the Government as follows:

"The Government recognises the importance of the prosecutors having a "voice" in the formulation and implementation of criminal justice policy, and in ensuring that policy decisions and legislation in that area are operationally workable. The Government also agrees with the majority of respondents that that "voice", to be effective, needs to be a Ministerial one. The Government considers that it would be artificial to divorce Ministerial responsibility for the superintendence of the prosecuting authorities from Ministerial responsibility for ensuring the "front-line" experience of the prosecutors informs the development of criminal justice policy."[63]

84. The ministerial responsibility of the Attorney General has attracted much criticism from commentators, both from those in favour of the reforms in the Draft Bill and those against. For example, Professor Anthony Bradley (who is overall in favour of the reforms in the Draft Bill), in his written evidence to the Lords Constitution Committee said:

" …in my view the distinct character of this responsibility of the Attorney General [superintending the prosecution authorities] is not assisted by the present trilateral system of shared responsibility for criminal justice that involves the Attorney acting with the Home Secretary and the Secretary of State for Justice in the Office of Criminal Justice Reform. I suggest that this trilateral system should be replaced by one based on joint responsibility of the two Cabinet ministers. The Attorney General and the Director of Public Prosecutions would be consulted on proposals for reform; but the Attorney would not share in the collective responsibility of ministers for such matters as legislation affecting criminal justice, and allocation of financial resources to the courts."[64]

85. Professor Bradley subsequently emphasised this point, saying that the Attorney General's essential functions are to do with matters in which 'rule of law' considerations come into play; they are not a matter for collective decision-making and they ought not (for instance) to be influenced by electoral factors or by opinion polls.[65] Both Professor Jowell and Roger Smith, Director of Justice, pointed out the potential conflict between the function of giving legal advice and formulating policy.[66] Professor Jowell said that although the prosecution function should have a voice this could just as well be by consultation along the lines of consulting the judges.[67]

86. On the other hand there are genuine public policy issues which are not just matters for the courts and/or lawyers. The decision to halve the time taken to bring young offenders before the court was a policy decision which had considerable public support. Courts and the legal profession would not have achieved the aim without significant ministerial leadership by the Lord Chancellor and the Attorney General as well as the Home Secretary.

87. We asked the Attorney General for her view on the need to take part in the formulation of ministerial policy. She referred to the Auld Review of the criminal justice system, which identified the problem of policy makers operating in "silos".[68] She said:

"...improvements (to the criminal justice system) have been predicated upon the Ministry of Justice working hand in glove with the Home Office and working with us as the prosecutors, trying to make the system have the most integrity that we can cull from the opportunities that we have before us…"[69]

88. Although we acknowledge that the prosecution function does have an important contribution to make to the formulation of criminal justice policy, there is a tension if a single office combines this function with that of the Government's chief legal adviser. We agree with Professor Jowell that there are other mechanisms for ensuring that the prosecution authorities have a voice. This dual role of the Attorney General has attracted criticism, and detracts from the clear distinction in the line of responsibility between the ministerial policy makers and those charged with prosecutorial and legal advice functions. The Ministerial role of the Attorney General in relation to criminal justice policy should be separated from the role of legal adviser.

SELECT COMMITTEE ON THE ATTORNEY GENERAL

89. Part of the discussion of whether the Attorney General should be a minister has included the question of whether there should be a specific Select Committee to cover the Office of the Attorney General. This was raised by the Government in their consultation paper[70] and some have called for such a Committee of the House to scrutinise the work of the Attorney General.[71] The Office of the Attorney General is already adequately covered by the select committee system in the House—it is now expressly included in our remit.[72] There is no need for a specific Committee to scrutinise the Attorney General—we have that function and look forward to exercising it increasingly.

Miscellaneous responsibilities

90. The Attorney General has a variety of other responsibilities and powers to safeguard the public interest in individual cases, e.g. the power to bring proceedings for contempt of court; power to bring proceedings to restrain vexatious litigants; power to bring or intervene in certain family law and charity proceedings and, most importantly, the power to bring or intervene in other legal proceedings in the public interest.[73]In cases of major importance the Attorney General may represent the Government in the hearing in person.

91. We see little reason to continue this area of the Attorney General's responsibilities in the current way. It would be better if such matters were expressly taken out of the political sphere.

92. The functions of the Attorney General in relation to safeguarding the public interest in individual cases, e.g. the power to bring proceedings for contempt of court, power to bring proceedings to restrain vexatious litigants, power to bring or intervene in certain family law and charity proceedings and, most importantly, the power to bring or intervene in other legal proceedings in the public interest functions could be better performed by a non-political office holder.

Rule of Law

93. Our predecessor Committee's Report on the Constitutional Role of the Attorney General, refers to changes consequent on Constitutional Reform Act 2005, as a result of which the Attorney General is the only lawyer within Government (as the Lord Chancellor need not be a lawyer). The question was raised about who within Government would ensure that the Rule of Law was followed if not the Attorney General?

94. Professor Jowell has argued that if the political role of the Attorney were retained (on the ground of the need to have a lawyer at the heart of government) then at the least the Attorney ought, like the Lord Chancellor, to be placed under a statutory duty to uphold the Rule of Law. In addition, her oath of office should be revised to reinforce that duty, and to make clear that she acts in the public interest.[74]

95. The Rule of Law is the basic principle on which all our freedoms rely. In practical terms, it guarantees that officeholders can resist pressure from Government to take decisions which are inappropriate—and can be seen to be independent. We have already noted above (paragraph 43ff) the very broad powers which the Draft Bill would give to the Attorney General to halt proceedings or SFO investigations. Allowing too extensive powers can create the real or perceived situation of Government pressure being applied to ensure that a decision is taken in a particular case for reasons which are improper or illegal. The public duty to observe the Rule of Law should be strengthened.

96. We favour a statutory duty being placed on all ministers to observe the Rule of Law. An Attorney General (whether political or not) could still be the active conscience of Government—if the Attorney General's advice is not taken, then that would be a political decision for which the Government would take responsibility. The Attorney General's oath of office should be reformed to cover the duty to uphold the Rule of Law.

Amendment of the Act

97. Most of our inquiry relates to the work of our predecessor Committee on the Constitutional Role of the Attorney General. However, we have one additional point to make in relation to Clause 43, which is a "Henry VIII" clause, enabling ministers to amend primary legislation by statutory instrument.

98. Clause 43 reads as follows:

43 Power to make consequential provision

(1) A Minister o the Crown, or two or more Ministers of the Crown acting jointly, may by order make such provision as the Minister or Ministers consider appropriate in consequence of this Act.

(2) An order under subsection (1) may —

(a) amend, repeal or revoke any provision made by or under an Act;
(b) include transitional or saving provision.

(3) An order under subsection (1) is to be made by statutory instrument.

(4) A statutory instrument containing an order under subsection (1) which amends or repeals a provision of an Act may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(5) A statutory instrument containing an order under subsection (1) which does not amend or repeal a provision of an Act is subject to annulment in pursuance of a resolution of either House of Parliament.

99. Clause 43(1) is not without precedent. But we note that the scope of the power to amend the Act in practice depends upon how specific the provisions are under the Bill. We recommend that the Joint Committee, when it looks at the totality of the provisions of the Bill, considers whether any of them could be made more specific in order to reduce the area in which Clause 43(1) would operate.

29 Ministry of Justice, The Governance of Britain -Constitutional Renewal, March 2008 Cm 7342-I, para 62 Back