Select Committee on Justice Fourth Report

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)

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