Memorandum submitted by Professor Anthony
Bradley
In reply to your inquiry on behalf of the House
of Commons' Justice Committee, let me say first that in general
I have been pleased to see the Government's proposals relating
to the Attorney General in the white paper, Constitutional
Renewal. They are broadly in line with my written evidence
to the House of Lords' Select Committee on the Constitution (see
the 6th Report of the Committee, 2007-08, HL Paper 93, Appendix
2). In summary, I argued there that the office of Attorney General
should be retained, but subject to (1) a review of the multiplicity
of functions that the office has acquired, with the aim of deciding
whether some of them are no longer needed or are better performed
in other ways; and (2) a re-statement of the essential functions
of the office and the conventions that apply to it.
Part 2 of the draft Constitutional Renewal Bill
goes a long way in this direction. I note with interest the detailed
provisions it contains for giving effect to the aim of re-defining
the essential functions of the Attorney as the Government's chief
legal adviser, accountable for some essential aspects of executive
power (including general oversight of the prosecuting authorities).
These functions must be performed in a manner that differs from
the normal role of departmental ministers. The difference is that
other ministers share fully in the collective responsibility of
the Government for its policies and its conduct of administration;
these policies may properly be motivated by political and electoral
considerations. By contrast, 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.
The most important task that differs from this
is the Attorney's role in relation to criminal justice policy.
In my evidence to the Committee on the Constitution (para 16),
I said that the distinct character of the Attorney's role in respect
to prosecuting policy "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"
and I suggested that the Office should become the responsibility
of the two Cabinet ministers acting together. The Attorney and
the DPP 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"
(ibid).
In Constitutional Renewal (at paras 96-97),
the Government rejects this view, having decided to retain the
present arrangements. The reason given is that prosecutors should
have a "voice" in formulating and implementing criminal
justice policy and in ensuring that policy decisions and legislation
in this area are "operationally workable"; and that
to be effective this "voice" needs to be a ministerial
voice. The white paper states:
"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."
I am sorry that I must disagree with the Government's
conclusion, and in particular with the reason given in relation
to ministerial responsibility. Certainly, the prosecuting authorities
should be in a position to express their informed views on ministerial
proposals for legislating on criminal law. But this can be achieved
through arrangements within Whitehall for consulting with the
Attorney and with the prosecuting authorities. The views of the
prosecuting authorities expressed through these arrangements would
indeed be backed up by a ministerial "voice", since
the Government has decided that the office of Attorney should
continue to be held by a minister. It is not "artificial"
to leave the Home Secretary and the Justice Secretary with joint
ministerial responsibility for government policies in relation
to criminal justice. It is these Cabinet ministers (and the other
members of their ministerial teams) who are responsible to Parliament
for the success or otherwise of those policies. Political criticism
should be addressed to those two ministers and not to the Attorney.
A further reason why I am not persuaded by the
reasoning in the white paper is that it does not take account
of the need (as I explained in my paper for the Lords Committee)
for there to be a re-statement of the conventions relating to
the Attorney's office as they are now understood. A re-statement
of the distinctive position of this office would be more clearcut,
coherent and easy to grasp, if it did not have to explain why
full ministerial responsibility for criminal justice policy was
included alongside the other essential functions of the office
that depart from the normal conventions of ministerial responsibility.
I see nothing to be gained by the Government from any assumption
being made in Parliament or elsewhere that the Attorney, the DPP
and other prosecuting authorities endorse or favour proposals
made by the Government for changing the law on criminal justice,
whether in respect of the substantive law, sentencing or criminal
procedure.
Finally, it will be clear to the Justice Committee
that the change that I would like to see made in this respect
to the present position of the Attorney can be made administratively
within Whitehall, and it does not need to be embodied in legislation.
But it should figure in a future re-statement of the conventions
relating to the office.
15 May 2008
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