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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