Select Committee on Justice Fourth Report

4  Conclusions

100.  In the light of the need for reform, which our predecessor Committee made clear in its Report on the Constitutional Role of the Attorney General, and the Government's stated aim of enhancing public confidence in the role of the Attorney General, we have examined the extent to which the Draft Bill changes the basis on which the Attorney General would carry out the functions of the Office.

101.  Professor Robert Hazell in his evidence to the Joint Committee on the Draft Bill said that it: "…proposes very little major change to the role, other than slightly greater accountability, in particular through the requirement to produce an annual report."[75] He approved of this outcome because of the need to preserve accountability to Parliament which was only possible in his view if the Attorney General (or the persons carrying out the duties set out in the Draft Bill) were a Member of either House (as noted above—see paragraph 77). Lord Falconer (speaking from a very different point of view) agreed about the limited range of the Draft Bill:

"There is nothing very much in this Bill which really changes the position of the Attorney General… after what started off as a quite optimistic proposal to reform the office of Attorney General it has all sort of sunk into a number of slightly pointless provisions…"[76]

Lord Falconer even called the Draft Bill "a sort of Constitutional Retreat Bill".[77] These remarks were echoed by Professor Jowell.[78]

102.  Overall, despite some welcome changes which are in line with our predecessor Committee's recommendations, where, for example, responsibility for legal matters is more clearly devolved to Directors, we believe that the Draft Bill represents little change of significance in the role and powers of the Attorney General. The provisions in the Draft Bill would set in statute arrangements which already exist in practice. The Draft Bill tends to formalise the status quo and would even increase the power of the Attorney General to act without scrutiny— for example, by issuing a conclusive certificate of reasons for making a direction to hold a prosecution or investigation.

103.  The main areas in which there is public concern about the Attorney General's role arise from fears that a political office holder may not be independent when acting as legal adviser or making decisions about ending prosecutions or—as newly proposed in the Draft Bill—investigations by the Serious Fraud Office. This was the main reason for the earlier recommendation that the legal and ministerial roles should be separated. The Government, and others who see a positive benefit in continuing political and legal decision-making in a single office, have not so far demonstrated that there is an alternative or better way of achieving greater public confidence.

104.  The provisions of the Draft Bill do little to add to the accountability of the Attorney General. We are not convinced that the new Annual Report would add much to the ability of Parliament to hold the Attorney General to account and it is highly unlikely that any Report to Parliament on directions given to the Directors in connection with a particular case involving national security would contain information that was of use.

105.  The Prime Minister's stated aims in respect of his constitutional reforms (as noted above in paragraph 4) are ambitious. His intention to forge a new relationship between Government and the citizen and to start a journey towards a new constitutional settlement which entrusts Parliament and people with more power is not likely to be assisted by the provisions in the Draft Bill relating to the Attorney General.

106.  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 sufficiently increase transparency.

75   Uncorrected transcript of oral evidence taken before the Joint Committee on the Draft Bill, on 14 May 2008, HC (2007-08) 551-ii, Q 68 Back

76   Uncorrected transcript of oral evidence taken before the Joint Committee on the Draft Bill, on 21 May 2008, HC (2007-08) 551-iv, Q 190 Back

77   Uncorrected transcript of oral evidence taken before the Joint Committee on the Draft Bill, on 21 May 2008, HC (2007-08) 551-iv, Q 216 Back

78   Q 4 Back

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