Joint Committee on the Draft Constitutional Renewal Bill

Joint Committee on the Draft Constitutional Renewal Bill First Report

CHAPTER 3: ATTORNEY GENERAL AND PROSECUTIONS

77._The office of the Attorney General is an historic one, with roots stretching back as far as the 13th Century. The title of "Attorney General" is first thought to have been used in the 15th Century, whilst the title of the second law officer, the "Solicitor General", was first recorded early in the 16th Century. The role gradually attained its modern shape—the Attorney became legal adviser to the Crown in the 17th Century, and the Law Officers' Department was created in 1893. In the words of the Government's recent consultation paper, "[o]ver the years the role of the Attorney General has therefore developed from being the legal representative of the sovereign to being an important figure in Government and finally a salaried Minister of the Crown."[40] The Attorney presently has three key roles:

(i) Legal adviser to the Crown;

(ii) Guardian of the public interest, including decisions on individual prosecutions; and

(iii) Minister of the Crown with responsibility for superintending the prosecutorial authorities, and (with the Home Secretary and the Secretary of State for Justice) for criminal justice policy.

Though the Attorney is a Minister and a Member of Government, she exercises the first two of these functions independently of Government and independent of collective ministerial responsibility. She is however subject to collective responsibility in respect of her function as Minister with responsibility for the prosecuting authorities and for criminal justice policy.

78._The debate on the role of the Attorney General has been given impetus by three controversies during the tenure of the previous Attorney, Lord Goldsmith:

(i) The nature of the Attorney's advice to the Prime Minister on the legality of the invasion of Iraq in 2003;

(ii) The 2006 decision by the Serious Fraud Office to halt an investigation into whether BAE Systems had paid bribes to Saudi Arabian officials in order to secure a defence contract; and

(iii) The debate over the requirement for the Attorney General to give his assent to any prosecution in the "cash for honours" investigation.

79._The Governance of Britain Green Paper stated that the Government was "fully committed to enhancing public confidence and trust in the office of Attorney General".[41] A consultation document on reform of the role was published shortly afterwards. The House of Commons Constitutional Affairs Committee (now the Justice Committee) published a report in July 2007, calling for a radical reform of the role, including a separation of the Attorney's "legal" and "political" functions, the former to be given to an independent law officer and the latter to another Government Minister, most likely the Justice Minister.[42] The House of Lords Constitution Committee published a report in April 2008 which outlined the various arguments for and against reform.[43] During our inquiry, the House of Commons Justice Committee published a follow-up report in response to the Government's proposals.[44]

The Government's proposals overall

80._The Government's proposals for reform were set out in the Constitutional Renewal Draft Bill, and accompanying White Paper. The Government propose:

The Attorney should retain his or her role as the Government's legal adviser;

The Attorney's legal advice should not be disclosed on a routine basis;

The Attorney should remain a Minister and a Member of either House of Parliament, and should attend Cabinet on the invitation of the Prime Minister;

The Attorney should produce an annual report on her work to be laid before Parliament, and the Government are open to suggestions for improved Parliamentary accountability;

The Attorney's responsibility for criminal justice policy (alongside the Ministry of Justice and the Home Office) should be retained;

The Attorney should not have the power to direct an individual prosecution, except in cases affecting national security;

The majority of requirements for the Attorney's consent to prosecutions should be abolished or transferred to the relevant prosecutorial director, and the power to halt a trial on indictment (by entering a plea of nolle prosequi) should be abolished;

The Attorney's superintendence relationship with the prosecutorial directors should be retained and set out in a protocol, with some clauses on the tenure of office of the directors placed in statute;

The Attorney's oath of office should be reformed, but not by statute.

81._There have been three broad responses amongst witnesses to the Government's proposals:

Some witnesses have broadly supported the Government's proposals;
Others have argued in favour of a more radical reform;
Others have argued that some aspects of the Government's reforms would remove too much power from the Attorney.

The Attorney General's role as legal adviser and as a Government Minister

82._The Government propose that the Attorney should remain as the Government's chief legal adviser and as a Minister within the Government. The Attorney General told the Committee that it was easier for an Attorney "of similar rank" to give "trenchant and robust" advice to Government colleagues, and emphasised the value of the Attorney sitting "at the apex of all the legal advice which is given" to government. To "uproot and pull out" the present arrangements would risk replacing them with a mechanism without "the same force, the same resonance, the same efficacy, the same potency as it has now". (Q 627) The Bar Council agreed that "the maintenance of a Law Officer at the heart of government is essential in an increasingly legalistic and regulated world". (Ev55, para 13) Some former Attorneys agreed. Lord Lyell of Markyate told the Committee that it was possible for a "political" figure to fulfil the role because "[t]here is a really strong ethos in the office that you will be completely independent and straightforward in your advice giving". (Q 587) Lord Morris of Aberavon agreed that "the job can be better done by a political figure. He takes a holistic view. He has to take into account the whole range of issues". (Q 588) Professor Robert Hazell, Director, Constitution Unit, University College London, thought that "there would be just as much controversy about the advice coming from a more detached figure as there is from the Attorney as currently constituted". (Q 71)

83._Others disagreed. Professor Vernon Bogdanor, Professor of Politics and Government, Brasenose College, University of Oxford, argued that "one of the consequences of the Iraq war [is] that the public, in general, do not believe any more that people are capable of wearing more than one hat". (Q 14) Former Lord Chancellor and Solicitor General, Lord Falconer of Thoroton agreed that public perception that the Attorney was part of "the gang" made it necessary for the Attorney to be "a trusted, independent figure … [who] is no longer part of the government itself". (QQ 191, 194) Professor Jeffrey Jowell argued that the role of legal adviser should, as in other "Westminster-style" democracies like Ireland or India, "be performed by an independent Attorney General who is not under the shadow of the perception of political bias … We have had some very independent Attorneys, but I think they have had to fight against their own political inclinations in order to be so".[45] The Justice Committee concluded that "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 … about the need to reform the office and restore public confidence in the office of Attorney General."[46]

84._We have carefully considered the evidence we have received and the recommendation of the House of Commons Justice Committee. We recognise that there are different and strongly held views on this issue. On balance, however, we are not persuaded of the case for separating the Attorney General's legal and political functions. We therefore support the current arrangement which combines these functions, and support the retention of the Attorney's present status as a Government Minister.

Disclosure of the Attorney General's legal advice

85._The Government have argued that the Attorney General's legal advice should not be published on a routine basis.[47] The Attorney General told us that there were "serious difficulties", in particular in terms of the disclosure of sensitive information, as well as the fact that, "like any proper legal advice, it will include an analysis of the competing arguments and risks." She foresaw a risk that disclosure would mean that lawyers and clients were less "brutally frank" with each other, thus undermining the quality and fullness of the advice given. (Q 628) A number of witnesses, including Sir Michael Wood, a former Foreign and Commonwealth Office (FCO) Legal Adviser, agreed with the Government's arguments, whilst Elizabeth Wilmshurst, a former FCO Deputy Legal Adviser, also felt that the frankness of legal advice would be compromised by the prospect of publication. (Ev18, paras 4-5, Q 27)

86._Whilst few witnesses argued in favour of full disclosure of legal advice, some argued for greater transparency. For instance, Lord Mayhew of Twysden told us that "the character of the advice should be made public". (Q 589) Others argued that advice about the legality of armed conflict should be published. Lord Falconer thought that it was "inconceivable" that the Attorney's advice in relation to the use of force could remain confidential: "[t]he idea that we are not being told the basis on which we are going to war in relation to international law seems to me to be inconceivable now as a matter of basic transparency". (Q 203) Lord Morris agreed that "if the responsibility is going to be on Parliament to decide we are going to war … then Parliament should be fully informed". (Q 589) Lord Goldsmith suggested that the legal advice should be "set out in some detail and Parliament can then judge that". (Q 660) The Bar Council agreed that "[w]here assurance on legality is likely to be a crucial underpinning to executive action in the international sphere … we think it unlikely that the question of legality would not be raised publicly and in Parliament such that government would have to address the question of legality publicly and would be unlikely to proceed without appropriate advice." (Ev55, para 18)

87._The Attorney General told us there was "an appropriate honourable compromise … which enables people to know the basis upon which you have made the decision and does not trespass against the sort of client/adviser confidentiality that enables people to make the most of the advice they are given so they can really make the best decisions." (Q 628)

88._The Government should be accountable to Parliament for its actions. For Parliament properly to discharge its accountability function, it must be sufficiently informed of the basis—including the legal basis—for the actions of Government.

Parliamentary accountability and transparency

THE ATTORNEY GENERAL'S ATTENDANCE AT CABINET

89._The current Attorney General has been asked by the Prime Minister to attend all Cabinet meetings in her capacity as the legal adviser to the Government.[48] She told us that "[a]ttendance at Cabinet is very much a matter for the Prime Minister … and I do attend whenever I am able to do so". She suggested that it was advantageous to be able to "get your legal advice [in] early", since it is not always possible to predict in advance legal issues that would arise in Cabinet. She also claimed that the Attorney's more pronounced criminal justice policy role means "it has become increasingly important for the Attorney … to be the spokesperson for the development of that prosecutorial policy within the criminal justice framework". (QQ 634-635) Lord Goldsmith broadly agreed, and pointed out the difficulties that had arisen when he had only attended Cabinet when the Cabinet Secretary said there was a specific issue where legal advice would be required. (Q 663)

90._This has not always been the arrangement. Lord Mayhew argued: "It never was [the practice] in my day, nor in the days of my predecessors … I do not think it is conducive to belief in his detachment from government that he should go as of right". (Q 594) Lord Morris agreed that the present arrangements were "a very unhappy practice" because "[T]here is a point in being a little distant from political colleagues [and] aloof from his colleagues". (Q 595) Lord Falconer thought that the Attorney should only attend Cabinet to give legal advice as required. For him, this debate demonstrated "why the Attorney General should become an independent figure, because he is unquestionably perceived to be a member of … the political government". (Q 202) On the other hand, the Prime Minister argued that regular attendance at Cabinet was not a recent innovation: "I do not believe it is the case that in the last ten years the Attorney General has rarely attended the Cabinet. The Attorney General has mainly attended the Cabinet".[49]

91._Whilst we accept that attendance at Cabinet is ultimately a matter for the Prime Minister, we endorse the Constitutional Affairs Committee's recommendation that "the old convention with respect to the Attorney General's attendance at Cabinet should be re-established."[50] We recommend that the Attorney should only attend Cabinet when the Prime Minister, on specific occasions, requires her legal advice, not routinely on the assumption that it might be required; or when Cabinet is considering matters on which the Attorney has Ministerial responsibility.

THE ATTORNEY GENERAL AS A MEMBER OF EITHER HOUSE OF PARLIAMENT

92._The Attorney General told the Justice Committee that it was necessary for Attorneys to be a Member of either House of Parliament in order to deliver Parliamentary accountability, and in particular to allow Members "to grill them, if necessary, within an inch of their lives." She added that "no-one has suggested [an accountability] construct which improves upon that which we currently have."[51] A number of witnesses agreed. Professor Hazell argued that since "the law officers have to be accountable, they have to be accountable to Parliament, and the best way for them to be directly accountable to Parliament is for them to be Members of Parliament, of either House". (Q 68) All the former Attorneys who gave evidence to us reached a similar conclusion. (QQ 595, 663)

93._Other witnesses disagreed. JUSTICE argued that "[a] statutory legal adviser could be held accountable through a Parliamentary Committee in the same way as the [Parliamentary] Ombudsman". (Ev45, para 17) Professor Jowell also referred to the example of the Ombudsman, and noted that the independent Irish Attorney appears before select committees as and when appropriate.[52] Lord Falconer suggested that a more appropriate accountability model for the non-political role currently undertaken by the Attorney would be the Director of Public Prosecutions. (Q 200)

94._Some witnesses considered which of the two Houses it was more appropriate for the Attorney to sit in. The Attorney General has been a member of the House of Lords since 1999. Professor Jeremy Horder, Criminal Commissioner, Law Commission, and Member, Criminal Justice Council, saw some advantage in the Attorney sitting in the Lords, since it created "a little bit of distance in the public eye, at any rate, from the hurly-burly of party … politics". (Q 606) Lord Morris said that he would prefer it if the Attorney sat in the Commons, whereas Lord Goodhart thought that this might create a conflict of interest between the requirement to give unpopular device and the desire to retain his or her seat. (Q 595, Ev05, para 4)

95._Roger Smith, Director of JUSTICE, argued that it was "a bit unsatisfactory" that the Commons were only able to hold the Solicitor General directly to account, when, as in recent times, the Attorney General sits in the Lords.[53] Lord Lyell suggested that the Lords should have a regular question time for an Attorney sitting in the Lords, while Lord Carlile of Berriew saw no reason why the Attorney should not answer questions in the House of Commons. (QQ 595, 605)

96._We recommend that, in order to deliver effective accountability, the Attorney General should continue to sit in one of the two Houses of Parliament. Which House should be determined by the Prime Minister's choice as to who is the most qualified candidate.

PARLIAMENTARY SCRUTINY OF THE WORK OF THE ATTORNEY AND THE ATTORNEY'S OFFICE

Annual Report

97._Clause 16 of the Draft Bill requires the Attorney General to lay an annual report before Parliament "on the exercise of the functions of the Attorney General during the year." (This would be in addition to the annual Departmental Report of the Law Officers' Departments.[54]) However, the Attorney would not be required to include in this report any information that she judges might impinge on legal professional privilege, could prejudice national security or seriously prejudice international relations, or that would prejudice the investigation of a suspected offence or proceedings before a court. The Attorney General told us how important the annual report was and that it should not be underestimated. She said that it would meet a need amongst the public and politicians alike to understand what the Attorney did. (QQ 646-647) Professor Jowell and Lord Goldsmith both agreed that it was a positive development (Q 654).[55]

98._A number of witnesses had specific concerns about the extent to which it would increase accountability. Mark Ryan, Senior Lecturer in Constitutional and Administrative Law, Coventry University, and Global Witness were both concerned that there would be less than effective Parliamentary oversight of the annual report. (Ev36, para 9, Ev39) Lord Carlile suggested that there could be more frequent periodic reports that were subject to scrutiny by Parliamentary committees. (Q 618) The Justice Committee concluded that it was "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."[56]

99._We welcome the proposal for an annual report on the exercise of the Attorney's functions which will enhance Parliamentary scrutiny and public awareness of the work and functions of the Attorney General.

Improved Parliamentary accountability mechanisms

100._Some witnesses suggested new or improved mechanisms for ensuring the Attorney's accountability to Parliament. The Government suggested that one option would be for a new select committee to scrutinise the work of the Attorney General and the Attorney General's office, although they stressed this was a matter for Parliament.[57] Democratic Audit supported this proposal and Lord Goldsmith was also sympathetic. (Ev04, para 51, QQ 682-684) However, the Justice Committee concluded that there was no need for an additional, specific committee to scrutinise the Attorney General: "we have that function and look forward to exercising it increasingly."[58] The Bar Council agreed. (Ev55, para 16)

101._We agree with the House of Commons Justice Committee that the current arrangements for select committee scrutiny of the Attorney General and her office are sufficient and work well. There is no need for an additional committee.

The Attorney General's role in the formulation of criminal justice policy

102._The Attorney General told the Justice Committee that it was important that the Attorney should retain her current criminal justice policy responsibilities because this helped "to make sure that each part of the system worked in a better and more conjoined way … Having an Attorney General whose main focus is going to be on prosecutorial authority and the roles that they play is very important".[59] Sir Ken Macdonald, Director of Public Prosecutions, told us that previously it had been felt that "prosecutors had too limited a role and they should be more influential … We have deliberately driven a process in which prosecutors have some influence on the development of criminal justice policy … It is absolutely critical from our point of view … to have, through the Attorney, a seat at the top table when criminal justice discussions are taking place". (Q 636) The other prosecutorial directors agreed, as did Lord Goldsmith. (QQ 637, 667)

103._Others were less convinced. Lord Lyell thought that the Attorney acting formally as a part of tripartite ministerial responsibility alongside the Home Office and the Ministry of Justice did not sit "particularly easily with the role in general". Lord Morris agreed that there was "a danger of being too mixed up with policy", and Lord Mayhew thought the combined roles meant that the Attorney could get herself into a position where her independence "does seem to be rather diminished". (Q 596) Lord Falconer agreed that the Attorney's policy role had made "his or her independent role much more obliterated and confused". (Q 197) The Justice Committee concluded that there were "other mechanisms for ensuring that the prosecution authorities have a voice" and that "[t]he Ministerial role of the Attorney General in relation to criminal justice policy should be separated from the role of legal adviser."[60]

104._We acknowledge that the Attorney General plays a valuable role in championing the prosecutorial authorities in criminal justice policy formulation. We therefore agree with the Government that the Attorney General's functions in relation to criminal justice policy should be retained.

The Attorney General's role in prosecutions

REMOVING THE ATTORNEY'S POWER TO DIRECT PROSECUTIONS IN INDIVIDUAL CASES

105._Clause 2 of the Draft Bill removes the Attorney's power to give a prosecution direction in relation to an individual case. Such powers would rest with the prosecutorial directors. The Lord Chancellor argued that this change was "very significant" and Professor Jowell told the Justice Committee that it would mean that there would be "less opportunity for the Attorney to interfere in the prosecutorial process". (Q 778)[61] The Corner House believed that the proposal was "an important principle enshrining the independence of prosecutors", (Ev10) and the Justice Committee also approved of this transfer of powers.[62]

106._On the other hand, Sir Ken Macdonald was sceptical about the practical impact of this change. He told us that he had always been "something of an agnostic in this debate about whether there was a power to direct, although most people believed that there was. In the sense that it has never been exercised so far as anyone can discover there may not be a dramatic change of practice or any change at all". (Q 638)

107._Other witnesses were hostile to the proposed change. Several of the former Attorneys stated that, though it was a power that was rarely if ever used, it should be retained. (QQ 597-598) Lord Morris argued that it was the "ultimate nuclear weapon because unless you have the power, how can the director in each department be made to listen to your decision?" Lord Lyell argued that, since the Attorney was answerable to Parliament for any decision, the power should be retained on grounds of Parliamentary accountability: "[Y]ou cannot have responsibility without power." Lord Mayhew agreed, and added that "you would end up with something much less accountable and much less satisfactory". He argued that the Government was seeking "to feed an asserted perception that anybody holding the present functions and responsibilities … cannot be trusted to exercise them fairly and with integrity". The Bar Council and Lord Mackay of Clashfern also expressed their concern over the proposal. (Ev55, paras 21-26, Ev47, paras 3-5, 8)

EXCEPTION TO THE BAN IN CASES AFFECTING NATIONAL SECURITY

108._Clause 12 of the Draft Bill sets out the Government's proposal that the Attorney should have a power to direct if the Attorney is "satisfied that it is necessary to do so for the purpose of safeguarding national security." The Attorney General argued that such a power was necessary "because of the importance of that issue to our country and because the fundamental nature of government is to make the safety and security of our citizens of primary importance".[63] She argued that, as the independent guardian of the public interest, and, pending reform of the oath, of the rule of law, the Attorney was the appropriate Minister to exercise these powers.[64] The Bar Council thought that the proposals were "well-balanced. We agree there should be provision for the (rare) need to stop a prosecution in the interests of national security; and the requirement for a report to Parliament on any occasion when the power is exercised seems to us an appropriate means of accountability and restraint." (Ev55, para 22) Lord Carlile agreed that it was a necessary power. (Q 617)

109._Other witnesses had deep concerns. Democratic Audit thought that the proposal was "entirely improper", in particular since "[t]he concept of 'national security' is notoriously susceptible to distortion; and leaving any such decision in the hands of a minister is likely to provoke public suspicion of abuse for political ends." (Ev04, para 47) The Corner House and JUSTICE also felt that the change from an ill-defined discretionary power to an explicit statutory power marked an increase in the Attorney's powers. (Ev10, Ev45, para 6) Professor Bogdanor saw "very considerable danger" in the proposal, since "it would be perfectly possible for national security to be used as a cloak by a politician for some other matter, and there are suggestions … that this has in fact happened in the recent past". (Q 17) Mark Ryan suggested that any proposed use of the power should be immediately brought to the attention of a specially appointed Select Committee, which could alert Parliament of any concerns. (Ev36, para 8) JUSTICE argued that the Attorney should only have a power to make a submission on national security to the prosecutorial director. (Ev45, paras 4-13) The Corner House recommended that a system of "strong checks and balances" needed to be in place. (Ev10)

110._Several witnesses made comments on particular aspects of the national security provisions, specifically clauses 12(1), 13(5) and 14(3).

111._The Justice Committee and Democratic Audit (Ev04, paras 46-47) were particularly concerned about clause 12(1)(a), which would give the Attorney the power to halt an investigation by the Serious Fraud Office. The Government justified this power on the basis that the Director of the Serious Fraud Office was the only one of the prosecutorial directors who has an investigative function.[65] However, the Justice Committee concluded that there was no justification for such powers.[66] Professor Horder was also concerned that this clause went too far. (Ev63)

112._Professor Jowell and a number of others were concerned that clause 13(5) (whereby a certificate signed by the Minister is "conclusive evidence" that a direction on the grounds of national security was necessary) was an 'ouster' clause that would prevent judicial review of any decision, "which is really contrary to every tenet of the rule of law which requires access to courts to challenge ministerial decisions".[67] The Justice Committee,[68] The Corner House and Global Witness made similar points. (Ev10, 39) However, Mark Ryan argued that the use of judicial review in this context would be inappropriate. (Ev36, para 8) Professor Feldman argued that the possibility of judicial review would be dependent upon the approach of the courts to any certificate issued under clause 13(5). (Ev66, paras 35-41) He also disagreed with Professor Jowell that the proposed clause would be vulnerable to challenge under the Human Rights Act. (Ev38a, para 34, Ev66, paras 40-41)

113._Professor Horder was concerned about clause 14(3), which states that information need not be included in a report to Parliament which is required whenever the power to direct is exercised, if the Attorney is satisfied that (a) a claim to legal professional privilege could be maintained, (b) the inclusion of the information would prejudice national security or would seriously prejudice international relations, or (c) the inclusion of the information would prejudice the investigation of a suspected offence or proceedings before any court on the grounds that it was too broadly drafted. He recommended that clause 14(3)(b) should make no reference to international relations, because, as currently drafted, the sub-clause would "put the UK in danger of breaching its international obligations", and that, "[i]f information under this heading is withheld, there will be no way of knowing if a decision has been taken for reasons of economic advantage, as opposed to a wish to protect national security or secure human rights". (Ev63) The Justice Committee concluded that "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."[69] The Corner House and Global Witness raised similar objections. (Ev10, p4, Ev39)

114._We sympathise with the Government's concern to ensure operational independence for the prosecutorial authorities, but we are not convinced that removing the Attorney General's power to give a prosecution direction is an appropriate route for achieving this. We were impressed by the strength of the evidence we received that the "nuclear option" of being able to stop a prosecution must be retained, and that the most appropriate person to exercise it is the Attorney General, as she is directly accountable for its exercise to Parliament. Removing this power would mean that the Attorney would have responsibility without power. We recommend that the Attorney General should retain the power to give a direction in relation to any individual case, including cases relating to national security. This should continue to be on a non-statutory basis. We see merit in the Attorney General reporting to Parliament if she gives a direction in relation to an individual case and we recommend that the Government establishes a procedure for the Attorney to do so. If, however, the Government removes the Attorney's power to give a direction in an individual case, we agree that the Attorney should retain the power to intervene for the purpose of safeguarding national security, subject to the requirement to report to Parliament.

TRANSFER OR ABOLITION OF MOST OF THE REQUIREMENTS FOR THE ATTORNEY'S CONSENT TO INDIVIDUAL PROSECUTIONS

115._Clause 7 and Schedule 1 of the Draft Bill outline the Government's proposals for transferring or abolishing most of the current requirements for the Attorney General's consent to individual prosecutions, although the requirement would be retained in a small number of cases "which are particularly likely to give rise to consideration of public policy or public interest".[70] In a letter to the Committee, the Attorney General noted that "[d]etermining which of the … categories each offence falls into is not straightforward" and that "further work is needed on this aspect of the draft Bill. In particular, discussions with the prosecuting authorities are on-going."(Ev76, see also Ev72)

116._A number of witnesses commented on the proposals. Lord Lyell agreed that the various consent requirements "have become a little bit of a hotchpotch over the years. A substantial number of them are, quite rightly, left with the Attorney", and there are some "which are to be handed over to the Director in the draft Bill which actually I would keep with the Attorney". (Q 581) Lord Mayhew agreed that "there is a strong case for rationalising the list of offences". (Ev67) Others such as Democratic Audit argued that the requirement for consent should be transferred entirely to the DPP or other appropriate directors, in order to "depoliticise decisions over prosecutions". (Ev04, para 48) The Corner House argued that "there should be a proper public and Parliamentary debate about which offences would continue to require the Attorney's consent". (Ev10)

117._The question of how Parliamentary accountability would be retained when consent requirements are transferred was also raised in evidence. The Attorney told us that "we will need to think as to how any assurance that Parliament may need can be given because I should imagine that the conduit through which such assurances will be given to Parliament would still end up being the Attorney". (Q 645) In a subsequent letter to the Committee, she added that it would still be open for the Attorney to seek information about a case "and to convey that information to Parliament in response to Parliamentary Questions or otherwise". (Ev76) However, Professor Horder told us that "I regard it as wrong to think that there should be accountability to Parliament for the conduct of prosecutors in individual cases". (Ev63)

118._We support the Government's proposal that the majority of requirements for the Attorney's consent to individual prosecutions should be transferred or abolished, with a small number retained by the Attorney. We do, however, recommend that further work should be undertaken to determine the category into which each consent requirement falls, and to ensure there is an effective accountability mechanism if and when powers are transferred.

ABOLITION OF THE POWER TO HALT A TRIAL ON INDICTMENT (BY ENTERING A PLEA OF NOLLE PROSEQUI)

119._Clause 11 of the Draft Bill proposes to abolish the Attorney's power to halt a trial on indictment (by entering a plea of nolle prosequi). The Attorney General told the Committee that this was in line with the proposals to end the power to direct and to refine the range of offences for which the Attorney's consent to prosecute is required. (Ev76) A number of witnesses, including The Corner House and Democratic Audit, supported the Government's proposals, (Ev10, Ev04, para 49) whilst Professor Horder asserted that the nolle prosequi power was not necessary because "the more active role of the judiciary in modern times (to stay proceedings for abuse of process), coupled with the development of a professional prosecution service bound by a code of conduct, is enough". (Ev63) The Justice Committee was uncertain of the utility of the proposal, but thought that it would "in a small way remove some power over prosecutions from the Attorney General."[71]

120._However, some of the former Attorneys did not agree. Lord Morris conceded that the nolle prosequi power was "an ultimate power not often used these days", but referred to specific cases where he had seen fit to use the power, and "[h]ence, it is important to maintain it, and I think the Government are going … the wrong way completely." Lords Lyell and Mayhew agreed. (QQ 601-602) Lord Goldsmith told the Committee that the fact this power existed was probably more important than its exercise. (Q 678) In response to these comments, the Attorney General conceded that the proposal to abolish the nolle prosequi power risked creating a "gap" in which neither the prosecuting authority nor the Attorney would be able to stop a prosecution. "For this reason we are considering whether it is appropriate to modify the powers of the main prosecuting authorities to discontinue proceedings [but t]his in turn raises difficult issues." (Ev76)

121._In line with our recommendation in paragraph 114 that the Attorney should retain a power to direct, we recommend that the power to halt a trial on indictment (nolle prosequi) should be retained. We invite the Government to investigate how greater Parliamentary accountability for its use might be provided.

The Attorney General's superintendence function

RETENTION OF THE ATTORNEY GENERAL'S SUPERINTENDENCE FUNCTION

122._The Governance of Britain White Paper argued that the Attorney General should maintain her superintendence functions over the Director of Public Prosecutions (DPP), the Director of the Serious Fraud Office (DSFO), and the Director of Revenue and Customs Prosecutions (DRCP). The Government argued that superintendence was necessary because Ministers had a legitimate interest in the objectives and policies of the prosecutors, because it would prevent the Directors being drawn into the political arena, and because the Attorney was in the best position to do the job as an independent lawyer and guardian of the public interest.[72] The Directors themselves told the Committee how much they valued their relationship with the Attorney. (QQ 636-637, 640-642) The Bar Council agreed that the relationship was "appropriate and necessary and that no other Minister would be appropriate for this role". (Ev55, para 20)

123._Other witnesses were less convinced. Professor Bogdanor argued that an independent legal adviser "should not be responsible for superintending the prosecuting authorities". (Q 17) Professor Horder saw "the organisational logic of giving the superintendence role to the Ministry of Justice or to the Home Office", adding, however, that "so long as the prosecution services and the AG are content that the current arrangements work well, I see no pressing reason for change". (Ev63)

124._We agree that the Attorney General should retain her superintendence function in relation to the Director of Public Prosecutions, the Director of the Serious Fraud Office and the Director of Revenue and Customs Prosecutions.

THE PROTOCOL

125._Clause 3 makes provision for a new protocol setting out "how the Attorney General and the Directors are to exercise their functions in relation to each other." The protocol has not yet been published, although the Draft Bill indicates the areas it should cover. The proposal of a protocol was welcomed by the Bar Council, (Ev55, para 27) and Lord Lyell, who told us that the superintendence relationship "is an area which … has not been spelt out and could probably quite usefully be spelt out". (Q 581) Sir Ken Macdonald told us that it was a critical document since it set out the superintendence relationship for the first time, and it therefore "has to find a balance between reassuring the public that prosecutors make decisions free from political pressure and from an independent position at the same time as maintaining a level of appropriate accountability to Parliament". He did not want the protocol to be set out on the face of the Bill, as he wished to preserve some element of flexibility. (Q 641) The Attorney herself emphasised that this was a "living document" that was "not necessarily going to be one which will be permanently set in stone because it may have to change and adapt". (Q 640)

126._Witnesses expressed some specific concerns about the status of the protocol and the extent of Parliamentary scrutiny of it. In their joint submission to the Committee, Lords Lyell, Mayhew and Morris argued that "[i]t would be much better for the draft bill itself to contain the protocol in carefully considered language which can then be debated and amended by Parliament". (Ev40) Global Witness and The Corner House also argued for stronger Parliamentary scrutiny of the protocol. (Ev39, Ev10) Professor Horder, although generally in favour of a protocol, thought that the elements of the protocol set out in the Draft Bill were "slightly curious", for instance clause 3(2)(h) on media relations, and 3(2)(i) on complaints. He also argued that in addition to consulting the Directors about revisions to the protocol, as specified in the Draft Bill, the Attorney should also consult with other interests such as the police. (Q 621) The Justice Committee regretted that the Draft Bill had been published before the protocol was ready, and called for it to be published before the Bill is introduced.[73]

127._We welcome the proposal for a protocol setting out how the Attorney General and the prosecutorial directors should exercise their functions in relation to each other. However, we recommend that the proposed protocol should be published in draft and subjected to Parliamentary scrutiny before the Bill is introduced. We also recommend that any future revisions of the protocol be the subject of scrutiny by the House of Commons Justice Committee.

QUALIFICATIONS AND TENURE OF OFFICE OF THE DIRECTORS

128._Clauses 4 to 6 provide new provisions about the tenure of office of the prosecutorial directors. The Attorney General wrote to the Committee explaining that the new provisions setting a five year term, and ensuring that the Director may only be removed under certain circumstances, provide "a significant enhancement to the security of tenure for the Directors", since "[c]urrently, the Directors are appointed for whatever term of office the Attorney considers appropriate (which has ranged from 1 year to 5 years) and are dismissible by the Attorney subject only to the limitations of contract law and public law." (Ev76) In his written evidence to the Committee, the Director of Revenue and Customs Prosecutions, David Green asserted that "[g]reater flexibility would be achieved by maintaining the ability of the Attorney to reappoint a serving Director for a term of less than 5 years." (Ev69) The Attorney General, however, stated that there might be a case for a limit on re-appointment, both to re-emphasise independence and to prevent a Director becoming "stale". This was an area "where the Government is still thinking". (Ev76)

129._Democratic Audit and JUSTICE welcomed the new clauses, (Ev04, para 46, Ev45, para 10) but Global Witness argued that it was "inappropriate for the Directors to be appointed by the Attorney General as long as s/he remains a member of the Executive", and that any "decision to remove the Directors should be subject to an independent and impartial review". (Ev39) The Corner House questioned whether the proposals met the security of tenure criteria for public prosecutors set out by the Council of Europe in 2000. (Ev10) Professor Jowell was particularly concerned that a Director could be dismissed by the Attorney as "unfit" for failing to have regard to the (as yet unwritten) protocol.[74] The Justice Committee argued that this left the position of the Directors unclear: "The Directors ought to have clearer security of tenure than is apparent in the Draft Bill."[75] In her letter to us, the Attorney General rebutted these claims, claiming that "it is right that compliance with the protocol is recognised as a key indicator as to the fitness of the Director. But the test remains one of unfitness—a high test." (Ev76)

130._We welcome the proposed new clauses relating to the tenure of office of the Directors, but recommend that the Bill be amended to make clear that it will be possible for the Directors' terms of office to be renewed.

OATH OF OFFICE

131._The Government are committed to reforming the oath of office of the Attorney General, but are not planning to place it on a statutory basis. The Attorney General told the Committee that that was simply because "we do not need to have a piece of legislation. I do not think it is any more complex than that. I tend to take the view … that if you do not need legislation then we should not have it". (Q 648) Lord Goldsmith agreed. (Q 686)

132._There was general agreement amongst witnesses that it was necessary to reform the oath, and several argued that it would be best to do so by way of statute. Lord Mayhew argued that "it had better be achieved by statute", although he was more concerned with the fact that the Bill made "no reference to the traditional role of the Attorney General as the guardian of the public interest". (Ev67, Q 600) The Bar Council thought that a statutory approach was essential, to "giv[e] it Parliament's full endorsement". (Ev55, para 15) The Constitution Committee believed that the responsibilities of the Attorney (and possibly other ministers) in upholding the rule of law should be acknowledged in statute, and that the Attorney's oath of office should be updated through primary legislation. (Ev71, paras 9-11) The Justice Committee agreed that the Attorney's oath of office "should be reformed to cover the duty to uphold the Rule of Law."[76]

133._We agree with the Government that the oath should be reformed, but like the Government, we do not believe that it is necessary to put the oath on a statutory basis.

40 The Governance of Britain: A Consultation on the Role of the Attorney General, July 2007, Cm 7192, para 1.6 Back

41 Ministry of Justice, The Governance of Britain, July 2007, Cm 7170, para 54 Back

42 Constitutional Affairs Committee, 5th Report (2006-07), Constitutional Role of the Attorney General (HC 306) Back

43 Constitution Committee, 7th Report (2007-08): Reform of the Office of Attorney General (HL 93) Back

44 Justice Committee, 4th Report (2007-08), Draft Constitutional Renewal Bill (provisions relating to the Attorney General) (HC 698) Back

45 ibid., Q 5 Back

46 ibid., para 40 Back

47 Ministry of Justice, The Governance of Britain-Constitutional Renewal, March 2008, Cm7342-I, para 66 Back

48 Liaison Committee, Minutes of Evidence, 3 July 2008, HC 192-ii, QQ 131-132 Back

49 ibid., Q 132 Back

50 Constitutional Affairs Committee, 5th Report (2006-07), Constitutional Role of the Attorney General (HC 306), paragraph 86 Back

51 Draft Constitutional Renewal Bill (provisions relating to the Attorney General), op cit., QQ 46-52 Back