Conclusions and recommendations
1. 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. (Paragraph 10)
2. 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. (Paragraph 34)
3. 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. (Paragraph 39)
4. 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. (Paragraph 40)
5. The Draft Bill
transfers powers over individual cases to the Directors, except
where the Attorney General retains specific consent functions.
We approve. (Paragraph 42)
6. 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. (Paragraph 45)
7. We see no case
for the inclusion of the ouster clause. (Paragraph 51)
8. 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. (Paragraph 52)
9. 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. (Paragraph 58)
10. 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. (Paragraph 63)
11. We approve of
the proposed reform to the Attorney General's functions in relation
to consent to prosecution. (Paragraph 65)
12. 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. (Paragraph 69)
13. 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. (Paragraph 71)
14. 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. (Paragraph 75)
15. 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.
(Paragraph 81)
16. The Ministerial
role of the Attorney General in relation to criminal justice policy
should be separated from the role of legal adviser. (Paragraph
88)
17. There is no need
for a specific Committee to scrutinise the Attorney General—we
have that function and look forward to exercising it increasingly.
(Paragraph 89)
18. 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. (Paragraph 92)
19. 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. (Paragraph 96)
20. 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. (Paragraph 99)
21. 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. (Paragraph 106)
| 
