House of Lords - Constitution

Select Committee on Constitution Seventh Report

Reform of the Office of Attorney General

1. A remit of the Committee is "to keep under review the operation of the constitution". In recent years, a debate has been taking place about whether—and if so, how—to reform the office of Attorney General (and consequently the role of the Solicitor General[1]). This debate was placed on a more formal footing when the Government released a consultation paper[2] on the role of the Attorney General as part of the process set in motion by the Green Paper on The Governance of Britain.[3] The Law Officers carry out functions of great constitutional importance. The Committee therefore decided to take oral evidence on the role of the Attorney from the current holder of that post, Baroness Scotland of Asthal QC, and to seek written evidence from two constitutional academics with divergent views on the subject: Professor Anthony Bradley[4] and Professor Jeffrey Jowell QC.[5]

2. In the light of this evidence and the findings of the House of Commons Constitutional Affairs Select Committee[6] in their recent report,[7] it became apparent that there are a number of different ways in which the post of Attorney might evolve. With this in mind, we now take the opportunity to set out the main arguments for and against reforming each of the different parts of the Attorney's role. We trust that this report will prove useful as a 'handbook' to guide members of the House through the continuing debate on the role of the Attorney.

The Role of the Attorney General

3. The office of Attorney General dates back to the 13th Century, although the current title was adopted in the 15th Century. The office assumed its modern shape in the 17th Century, when the Attorney became the legal adviser to the Crown. The Attorney and the Solicitor General are appointed by the Queen on the recommendation of the Prime Minister, as are all ministers. Subsequently, letters patent are issued under the Great Seal authorised by warrant under the royal sign manual, and they both swear an oath. The Attorney's key duties can be divided into four categories.[8]

THE ATTORNEY GENERAL AS PROVIDER AND CO-ORDINATOR OF LEGAL ADVICE

4. The Attorney, along with the Advocate General for Scotland, is the senior legal adviser to the Crown. This involves providing high-level advice to ministers, the Cabinet and also on occasion to the Queen and Parliament. Clearly, the provision of legal advice to the Government is important in giving practical effect to the constitutional principle of the rule of law. From time-to-time the Attorney represents the Government in legal proceedings in the courts of England and Wales, the European Court of Justice, the European Court of Human Rights and other international tribunals.

5. Within government, much of the day-to-day legal advisory work is carried out by lawyers employed by the Government Legal Service (the largest part of which is the Treasury Solicitors Department). These lawyers have a right of access to the Attorney, which enables them to raise issues of concern irrespective of what their own department's view may be. The Government also relies on independent members of the Bar for legal advice and representation. The Attorney appoints the First Treasury Junior (Common Law)—the 'Treasury Devil'— and the First Treasury Junior (Chancery), and panels of barristers of varying degrees of seniority whom departments may instruct.[9] The Attorney also appoints 'advocates to the court' (formerly known as an amicus curiae) to assist a court in particular cases and 'special advocates' to represent the interests of parties in certain national security cases.

THE ATTORNEY GENERAL'S ROLE IN INDIVIDUAL PROSECUTIONS

6. Routine decisions about the conduct of prosecutions in individual cases in England and Wales are made by staff of the Crown Prosecution Service (CPS), headed by the Director of Public Prosecutions (the DPP, appointed by the Attorney), or by other prosecuting authorities such as the Serious Fraud Office (SFO) and the Revenue and Customs Prosecutions Office. However, the Prosecution of Offences Act 1985 stipulates that the DPP "shall discharge his functions under … the superintendence of the Attorney General", and the other prosecuting authorities operate under a similar framework. In practice this means that, in various types of situation, the Attorney is required to take an interest in a particular prosecution or proposed prosecution. One such situation is where a statutory provision stipulates that the Attorney's consent is required before a prosecution may be brought.[10] Another is where some important public interest consideration (such as national security) may require a high-level determination as to whether an investigation or prosecution should continue.

7. Under the Criminal Justice Act 1988, the Attorney also has the power to refer what appear to be unduly lenient sentences to the Court of Appeal; in practice, such cases are identified by a specialist unit within the CPS and advice is sought from independent counsel before the Attorney decides whether to make a reference. Similarly, under the Criminal Justice Act 1972, where a person tried on indictment has been acquitted, the Attorney may seek the opinion of the Court of Appeal on a point of law which has arisen in the case.

THE ATTORNEY GENERAL AS MINISTER

8. The Attorney's role as a minister has several facets. He or she shares responsibility for criminal justice policy with the Home Office and Ministry of Justice—the Office for Criminal Justice Reform, a cross-departmental team, was set up in 2004 to coordinate this area of work. In addition the Attorney, along with the Solicitor General, is responsible and accountable to Parliament for the work and effectiveness of those agencies which fall under the superintendence of the Office of the Attorney General, including: the CPS; the SFO; the Revenue and Customs Prosecutions Office; the Army, Royal Navy and Royal Air Force prosecuting authorities; HM Crown Prosecution Service Inspectorate; and the Treasury Solicitors Department. The Attorney also sets general prosecutorial policy. Finally, as a minister, the Attorney may be invited by the Prime Minister to attend Cabinet.

9. Although these functions are ministerial in nature, it is important to note that the Attorney's responsibilities for legal advice and individual prosecutions are non-ministerial. In these roles, he or she is not subject to collective responsibility and must act independently of the Government.

OTHER FUNCTIONS OF THE ATTORNEY GENERAL

10. In addition to the responsibilities described above, the Attorney has several other roles such as: applying to the High Court for orders to restrict the activities of vexatious litigants; involvement in contempt of court proceedings; and responsibilities in relation to charities.

Background to the Reform Debate

11. The current debate about reforming the role of Attorney is in part a response to three major controversies in the last five years involving Baroness Scotland of Asthal's predecessor, Lord Goldsmith QC. The first of these related to his role as legal adviser to the Crown, whilst the other two concerned his role in prosecution decisions. These controversies are described in more detail below.

IRAQ

12. The nature of the Attorney's advice to the Prime Minister over the legality of invading Iraq in 2003 was an important issue in both the parliamentary and the public debate that took place at the time. The key question was whether it would be legal to invade Iraq without a second United Nations Security Council resolution to supplement resolution 1441, which had given Iraq "a final opportunity to comply with its disarmament obligations".[11] Lord Goldsmith provided his advice to the Prime Minister on 7 March 2003 but, relying on convention, the advice was not made public. However, on 17 March Lord Goldsmith delivered a public summary of his position in the form of a parliamentary written answer, in which he explained why he believed that an invasion would be legal.[12] The invasion commenced three days later, on 20 March.

13. Over two years later, on 28 April 2005, after a number of articles in the press and continuing pressure on the Government, the Attorney's full advice of 7 March 2003 was made public. That advice was different in several respects from the position set out in the written answer of 17 March 2003, giving a more qualified opinion on the legality of the war. The full advice set out the following conclusions:

14. The differences between the original advice and the summary of it disclosed at the time gave rise to speculation that the Attorney had been placed under political pressure to temper his opinion to align it with the Government's intentions.[15] This in turn led some people, including a number of legal and constitutional experts, to question whether it is appropriate for the Government's chief legal adviser also to be a politician and a member of that Government.[16]

BAE SYSTEMS

15. The second controversy concerned the decision to drop an SFO investigation into whether the British defence company BAE Systems had paid bribes to Saudi Arabian officials in order to secure a lucrative defence contract. On 14 December 2006, Lord Goldsmith told the House of Lords that the SFO had concluded that "there is no guarantee that this investigation would lead to prosecution" and that "the potential damage to the public interest which [an 18 month] period of investigation would cause is such that it should discontinue that investigation now". He added that he would go "somewhat further" because he considered that "there are obstacles to a successful prosecution so that it is likely that it would not in the end go ahead". He went on to explain that he had "obtained the views of the Prime Minister and the Foreign and Defence Secretaries as to the public interest considerations" and that they had "expressed the clear view that continuation of the investigation would cause serious damage to UK/Saudi security, intelligence and diplomatic co-operation, which is likely to have seriously negative consequences for the United Kingdom public interest in terms of both national security and our highest priority foreign policy objectives".[17]

16. The decision to drop the investigation was, and remains, controversial. Although Lord Goldsmith was absolutely clear that this decision had been made by the Director of the SFO after close consultation with the British ambassador in Saudi Arabia, it was not perceived in this way by much of the media, with the Government and Lord Goldsmith being accused by some of intervening in response to pressure from Saudi Arabia.[18] This speculation again led to a debate about the role of Attorney, this time over his responsibilities in respect of prosecution decisions and the public interest.[19]

CASH FOR HONOURS

17. The debate over the Attorney's involvement in prosecutions was further stimulated by the so-called 'cash for honours' investigation. That investigation focused on whether there had been any breach of the Honours (Prevention of Abuses) Act 1925, which banned the sale of honours, or the Political Parties, Elections and Referendums Act 2000, which required parties to declare donations of more than £5,000 (as opposed to loans made at a commercial rate of interest). The investigation also considered whether there had been a conspiracy to pervert the course of justice.

18. While the investigation was in progress, the prospect of Government ministers or officials being charged brought to the fore the question of whether the Attorney could genuinely be politically impartial if issues relating to the prosecution were referred to him. Some felt that the Attorney should step aside from making any decisions in the matter but Lord Goldsmith declined to do so.[20] However, he later told the Constitutional Affairs Select Committee that if issues were referred to him, he would seek advice from independent counsel and "make public that advice". He also undertook to "consult opposition parties" on the commissioning of such advice.[21]

19. In June 2007, when Gordon Brown MP took over from Tony Blair MP as Prime Minister, Baroness Scotland of Asthal QC succeeded Lord Goldsmith as Attorney. The new Prime Minister announced that the Government intended to consult on reforming the post of Attorney and that, in the meantime, Baroness Scotland of Asthal would not make key prosecution decisions in individual criminal cases "except if the law or national security requires it".[22] (This was in fact already the existing position: no Attorney in recent times has taken an individual prosecution decision not required by law.) Shortly afterwards, the CPS announced that no charges would be brought in connection with cash for honours.

The Government Consultation

20. On 3 July 2007, the Government announced a major programme of constitutional renewal with the publication of the Green Paper on The Governance of Britain. The Green Paper contained a section on the role of the Attorney, which noted:

"The Government is fully committed to enhancing public confidence and trust in the office of Attorney General and is keen to encourage public debate on how best to ensure this and will listen to the views of all those with an interest. We will therefore publish a consultation document before the summer recess which considers possible ways of alleviating these conflicts (or the appearance of them) and invites comments".[

21. Shortly afterwards, on 24 July 2007, the Constitutional Affairs Select Committee published its report on the Constitutional Role of the Attorney General which concluded that the role should be radically reformed.[24] The recommendations of the report are discussed in greater detail below.

22. Two days later, the Government published their consultation paper on the role of the Attorney.[25] The consultation paper set out the history and current role of the Attorney, the present debate on the functions of the post, options for change, and, as an appendix, details of the role of the Attorney General in other jurisdictions.

23. The consultation document's overview stated that "The Attorney General carries out a number of roles which have the potential to create tension with each other. The Attorney is a politician and a member of the Government, but also acts as an independent legal adviser and guardian of the public interest".[26] Whilst citing the advantages of the current arrangements, such as the direct accountability of the Attorney to Parliament and the ability to ensure that the Government can be consulted on the public interest considerations of sensitive individual criminal cases, the Government flagged up two areas of particular tension. First, the tension between the Attorney's function as a minister and member of the Government, and being an independent guardian of the public interest and performing superintendence functions (for example on decisions relating to sensitive prosecutions). Second, the tension between being a party politician and a member of the Government, and the giving of independent and impartial legal advice.

24. The paper set out a number of options for change, including the following:

Separating the Attorney's role as chief legal adviser to the Government from that of political Government minister, or reforming the way in which the Attorney currently performs this function so as to address any tensions between the roles.
Publishing the Attorney's legal advice to the Government in some circumstances, or making public the legal basis for key Government decisions.
Reforming the role of the Attorney in relation to criminal proceedings, perhaps simply by clarifying the ambit of that role, or by removing or limiting the public interest functions in relation to criminal prosecutions.
Removing the Attorney's criminal justice policy function.

The consultation closed on 30 November 2007.

25. On 12 December 2007, we took evidence from Baroness Scotland of Asthal. Before considering the nature of the consultation responses, we explored the apparent lack of accurate public—and parliamentary—awareness of the office of Attorney. Baroness Scotland of Asthal conceded that "there is not a real understanding of what the Attorney does and when the Attorney does it". Referring to the example of the BAE Systems investigation, she pointed to "a general misconception that that was a decision taken by the Attorney. Of course it was not. It was a decision taken by the Serious Fraud Office Director" (Q 3). Reflecting on this lack of awareness, she noted that "all the contributors talk about perceptions of conflict, as opposed to the reality of conflict, but there is, of course, this important issue as to whether perceptions do not of themselves distort the reality and, therefore, how do you deal with that whole issue. There has never been any suggestion that any of the Attorneys General in the past have ever behaved in any way other than with total propriety" (Q 6). She later added, "I think what is not acceptable is that the misconceptions should remain, because that would be very corrosive" (Q 8).

26. Turning to the consultation responses, Baroness Scotland of Asthal told the Committee that the majority of people who responded felt that "there is nothing of fundamental difficulty in relation to the Attorney General's role" (Q 2) and that "the more radical proposals that were certainly voiced in the CASC report do not appear to have gained a great deal of support from those who have contributed" (Q 5). However, "some [people] have suggested that there need to be some changes"; in particular, "the real issue has been in relation to the power that the Attorney has to direct in relation to individual prosecutions". There was also "some concern" as to whether the Attorney should or should not attend Cabinet, and "there has been an issue raised in relation to the criminal justice policy role that has been adopted by the Attorney". The suggestion that the Attorney should be someone "who sits outside of government" had been "very much seen as a minority view" (Q 2).

27. On 25 March 2008, the Government set out how they intend to take forward The Governance of Britain reforms in a three-part Command Paper consisting of a White Paper, a draft Constitutional Renewal Bill and an analysis of the various consultation responses.[27] These documents contain a number of proposed statutory and non-statutory reforms to the role of Attorney. The main points are as follows:

the Attorney would continue to be the chief legal adviser to the Crown, a Government minister and a member of one of the Houses of Parliament;
the Attorney would continue to superintend the main prosecuting authorities, but would no longer have the power to direct them to prosecute or not to prosecute an individual criminal case;
the Attorney would however have the power to stop or prevent a prosecution (or investigation by the Serious Fraud Office) where this is thought to be necessary for the purpose of safeguarding national security—and must report to Parliament each time this provision is used;
the requirement for the Attorney to consent to individual prosecutions for certain offences would be reformed; depending on the offence, the consent requirement would be a) abolished, b) transferred to the Director of Public Prosecutions or other appropriate Director, or c) retained; and
the Attorney would lose the power to enter a nolle prosequi (that is stop a trial on indictment).

28. In addition to these changes, the oath of the Attorney (and the Solicitor General) would be modified to require the post-holder to respect the rule of law, and the Attorney would have to make an annual report to Parliament.

29. Most of these proposals are contained in the draft Constitutional Renewal Bill and will be scrutinised by a Joint Committee of both Houses of Parliament. Because this is a draft bill, there is considerable scope for debate on the substance and the detail of the Government's proposals before the formal legislative process begins (it is expected that the Constitutional Renewal Bill will be announced in the next Queen's Speech).

Reform Options

30. We now consider the main arguments for and against reforming the role of the Attorney in three distinct areas: legal advice; prosecutions; and criminal justice policy.

LEGAL ADVICE

31. The key question with respect to the Attorney's advice function is whether it is appropriate for the Government's chief legal adviser to be affiliated to a political party and appointed by the Prime Minister as a member of that Government, or whether that role should be filled by an 'independent' legal adviser further removed from the political arena.

32. In evidence, Professor Jowell argued that "however 'semi-detached' from politics the Attorney may claim to be, if he or she is a member of either House of Parliament and takes the whip of the governing party, the role is clearly 'political'". Therefore, "when the Government does justify its actions on the basis of the Attorney's advice there may be occasions when those actions will be perceived to be based upon a partisan interpretation of the law". Countering the argument that the strong independent traditions of the Attorney are a sufficient safeguard against biased decisions, Professor Jowell stated, "the tradition of actual independence is not the only point here. The appearance of lack of independence is what matters. Justice must not only be done, but also [be] seen to be done". This had also been the impetus behind reforms to the judicial appointments system, he suggested: "Parliament in its wisdom acknowledged that the mere appearance of lack of judicial independence from the executive necessitated a new scheme of appointments by the independent Judicial Appointments Commission" (p 29).

33. Turning to the question of whether it is necessary to have a "political" Attorney "infused with a necessary understanding of the wider policy context and realities of government", Professor Jowell thought that such a criterion was "unacceptable insofar as it suggests that the Government would prefer to seek a convenient legal opinion from someone sympathetic to its policy goals" (p 29). In any case, he said, it would be easy nowadays to find someone outside politics with the requisite knowledge of "the political aspects of the kind of law upon which the Government is likely to need advice" because "there is now a very large cohort of barristers and solicitors specialising in public law who are of the highest quality and sensitive to policy considerations". Moreover, he asserted, "there is little reason to believe that an independent attorney drawn from this cohort would command any less authority with ministers than a 'political' attorney" (p 30). Alternatively, he suggested, it might be possible to retain some of the 'political' qualities of the current system whilst also reducing the "obvious appearance of bias that a fully political attorney inevitably attracts" if the Attorney were to be appointed by the Prime Minister for the duration of the term of government from amongst specialist practising lawyers (p 32).

34. Such an "independent" Attorney, Professor Jowell believed, would be under "no inhibition from attending Cabinet for the purpose of monitoring the legality of decisions". Indeed, "freed from competing political demands, she would have more time for the systematic monitoring of the legality of decisions as they emerged from the various centres of government (including Departments and Cabinet Committees)" (pp 30-31).

35. Professor Jowell's conclusions are similar to those reached by the Constitutional Affairs Select Committee. Drawing on the example of the Lord Advocate in Scotland, the report stated that "it is not necessary to be either a politician or a minister in the usual sense in order to be a member of the Government". Moreover, addressing suggestions that an independent Attorney might be sidelined, the Committee found that "no sensible minister would ignore the advice of an independent Attorney General who is not a Government minister. We note that ministers already accept the legal views of Treasury Counsel, who are not political insiders". The report concluded that legal advice should be provided by an independent, non-political career lawyer because:

"We see no reason why the official exercising the role of legal adviser to the Government should be a political appointee or a member of the governing party. Both in perception and reality, it would improve the independence and public confidence in the impartial nature and authority of the provision of legal advice if it were not the responsibility of someone in political life".[

36. Professor Bradley took a different view from Professor Jowell and the Constitutional Affairs Select Committee. He emphasised that it was very hard to separate the political and legal duties of the Attorney because "the difficult scenarios facing the office must often arise in shades of grey, rather than in the clear contrasts of black and white". This applied particularly to the Attorney's role as the Government's senior legal adviser where there was no "bright line between legal and political considerations" (p 24).

37. Considering the possibility of an 'independent' Attorney, Professor Bradley concluded:

"I consider it to be doubtful whether an 'independent' lawyer outside the structure of central government and not holding ministerial office would command the authority that at present goes with the office of Attorney General. Nor is it clear to me how such a new public officer could be made accountable or responsible for the manner in which he or she performs that role." (p 25)

38. Lord Goldsmith also made this point in his written evidence to the Constitutional Affairs Select Committee, suggesting that advice provided by an Attorney who is also a member of the Government "tends to be more heeded by ministers because it comes from one of their colleagues" and that "a minister receiving unwelcome advice is perhaps less likely to sweep it aside when it comes from a ministerial colleague rather than a civil servant or some external lawyer".[29] He also pointed to other aspects of the Attorney's role that would not be so effectively performed by an 'independent' lawyer. For example, referring to his role in negotiating for the return of British detainees held at Guantanamo Bay, which involved "difficult issues of law", Lord Goldsmith said "I do not believe I could have handled that role effectively had I not been a member of the Government, and been seen to be speaking with the authority of Government". He also quoted from a speech by Professor Jowell:

39. The current Attorney, Baroness Scotland of Asthal, was unable to set out her position when giving oral evidence to this Committee because the Government's consultation process was still ongoing at the time. However, she did emphasise that in recent times "there have been no attorneys general, to my knowledge, where there has ever been a suggestion that the political complexion changed the way in which they gave their advice" (Q 25).

PROSECUTIONS

40. The question in respect of the Attorney's role in prosecutions is whether it is appropriate for a member of the Government to be involved in certain decisions to prosecute or not to prosecute as part of his superintendence function. The issue of whether it should be the Attorney who fulfils the ministerial function of being accountable to Parliament for the work and effectiveness of the prosecution agencies is considered in the next section.

41. Professor Jowell wrote that "since the recent BAE [Systems] and loans for peerages sagas, which demonstrated so graphically how the Attorney's involvement in prosecutorial decisions can attract a perception of party-political bias, it is difficult to see how the opportunity for reform of the office could be declined" (p 31). Baroness Scotland of Asthal accepted that there were problems with public perceptions: "I think we are going back, are we not, to talk about the need to reassure, to make clear and to deal with perception, and it may have been an ill-informed perception, but there was a perception that the Attorney and attorneys general in the past had been responsible for directing in individual cases because they had power to direct" (Q 66).

42. Professor Jowell went on to note that the principal argument against reform was that "it is legitimate, in a decision to prosecute, to take into account the 'public interest'" and that a member of the Government is "best able to identify the public interest". However, he pointed out that there were limits to the notion of public interest. First, it is "not synonymous with the interest of the ruling party"; and second, it should not permit the Attorney freedom "to take into account 'political' considerations that are wholly unrelated to the purpose of the law under which the matter is being prosecuted"—so, for example, "it is not clear that the Attorney may properly take into account, in deciding to drop a prosecution for corruption, the ground that a prosecution may antagonise a foreign government and therefore lead to a loss of exports and employment in the UK". Such a motive would be "extraneous to the objects and purpose of the law … against corruption—and thus offends the rule of law" (p 31).

43. Nonetheless, Professor Jowell said, "there are a range of issues that may legitimately be taken into account in a decision whether or not to prosecute", for example national security or the fact that a conviction might lead to a national strike. But in his view, it was not necessary to have a 'political' Attorney in order to identify these kinds of matters. For example, in Ireland, "an independent DPP has proved perfectly capable of making these decisions": he consults the government in "sensitive cases" but makes the decision "untainted by the perception of unacceptably partisan bias". Having said that, Professor Jowell also suggested that "since decisions on the public interest are based upon considerations of policy rather than strict legality, it would be constitutionally appropriate for them to be acknowledged to be taken on the direction of the relevant minister, who would then be properly answerable to Parliament for the decision" (p 31).

44. The Constitutional Affairs Select Committee report argued that "the Attorney General's responsibility for prosecutions has emerged as one of the most problematic aspects of his or her role"[31] and suggested that "the present situation where the Attorney General has both ministerial functions and is responsible for making decisions with regard to prosecutions results in a potential conflict of interest". The Committee therefore recommended that the Government "separate the policy functions and the prosecutorial functions of the Attorney General", thus removing "the potential for the allegations of lack of independence and political impropriety". The 'ministerial' functions would instead be carried out by a minister in the Ministry of Justice, whilst an independent Attorney—the same career lawyer who would provide the Government with legal advice—would be responsible for deciding on prosecutions and "exercising a propriety and public interest role".[32]

45. However, the Committee also accepted that there needs to be "a mechanism through which ministers can communicate to the independent Attorney General their recommendation or their insistence that a particular prosecution should not proceed on national security grounds". Therefore, ministers would be able to instruct the Attorney, "in a process which would have to be transparent", that "on national security or public interest grounds a prosecution should not proceed".[33] Moreover, "where ministers instruct the independent head of the prosecution service on public interest grounds, whether national security or other grounds, the Secretary of State for Justice would be accountable to Parliament for that instruction".[34]

46. By contrast, Professor Bradley concluded that the Attorney's current role in individual prosecutions was unobjectionable in many ways, although it did need a measure of reform. In spite of what some people have claimed, he found that the Attorney's role in initiating civil proceedings and individual prosecutions did not constitute a breach of the constitutional doctrine of separation of powers because "a decision to prosecute is not itself a judicial decision but one that leads to a judicial decision by the criminal court of first instance or on appeal". In other words, this function of the Attorney is an executive function so there are no constitutional difficulties in the Attorney retaining the role, provided that decisions are never based on "politically partisan considerations" (p 24). Lord Goldsmith reinforced this point in his written evidence to the Constitutional Affairs Select Committee, noting that he took prosecution decisions "independently of Government, in the public interest".[35]

47. The position was somewhat different in respect of decisions not to prosecute, Professor Bradley noted, since "these appear to bar access to due process of law"—although he also implied that, because the option of pursuing a private prosecution or judicial review was available to aggrieved parties, this was not a bar to the Attorney taking such decisions. Notwithstanding this conclusion, Professor Bradley commented that the power of the Attorney to prevent a prosecution (whether public or private) from proceeding by issuing a nolle prosequi "may need to be the subject of legislation". If it was felt not to be sufficient to rely on "conventional safeguards against abuse" of the nolle prosequi power, he thought that it might be necessary "to require such a decision to be approved by (for instance) the Queen's Bench Divisional Court" (p 24).

48. Professor Bradley also indicated that the number of circumstances in which the Attorney is required by statute to approve a decision to prosecute should be kept to a minimum. He therefore proposed "a rigorous review of the statutes that require the approval of the Attorney General to be given to certain prosecutions, with the aim of shortening this list of offences, possibly by substituting the approval of the Director of Public Prosecutions for that of the Attorney" (p 26). This would not affect the Attorney's role in respect of certain sensitive individual prosecution decisions, such as those involving national security. Baroness Scotland of Asthal warned us, however, that "in the last year Parliament's desire to have the Attorney, as opposed to the DPP, determine these issues has continued with ever-growing appetite, it seems to me. There have been suggestions in the House of Lords that the DPP should do this: 'No, no', goes the cry, 'Go higher, go higher. We need the Attorney to determine this'" (Q 60).

MINISTERIAL FUNCTIONS

49. The key question here is whether the Attorney should continue to exercise ministerial responsibility in the field of criminal justice policy, which includes being accountable to Parliament for the prosecution services.

50. Professor Jowell noted that this function may require "the concentration of resources on the enforcement of certain crimes … and the corresponding reduction of concentration on others". Given that such decisions concern "the allocation of scarce resources, a matter traditionally within the realm of the executive", he concluded that they may "appropriately be taken by the Minister of Justice or Home Secretary (perhaps in consultation or in conjunction with the Attorney)" (p 31). Similarly, as noted above, the Constitutional Affairs Select Committee concluded that the ministerial functions of the Attorney "would be more appropriately carried out by a minister within the new Ministry of Justice".[36]

51. Moreover, the Constitutional Affairs Select Committee reported that "while there was no consensus about the Attorney's General's role as a minister there was unanimous agreement that he or she should not regularly attend Cabinet meetings" in the way that a normal Cabinet minister would do.[37] The Committee quoted Lord Mayhew of Twysden, a former Attorney, as saying:

52. The Committee therefore concluded as follows:

53. Professor Bradley agreed in part with the Constitutional Affairs Select Committee and Professor Jowell. On the one hand, he felt that the Attorney's ministerial role in superintending the prosecution services should be retained "on the basis that it … is concerned with general issues of prosecuting policy that arise from existing criminal law, being matters on which there should be public knowledge and accountability to Parliament" (p 25). On the other hand, he recommended that the Attorney's role in criminal justice policy through the trilateral Office for Criminal Justice Reform should be ended, leaving this policy area to the Home Secretary and Secretary of State for Justice. Under this proposed arrangement, "the Attorney General and the Director of Public Prosecutions 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" (p 26).

54. Like the Constitutional Affairs Select Committee and Professor Jowell, Professor Bradley also recommended that the Attorney "should attend Cabinet meetings only when oral advice is required on a specific issue". In addition, he noted that "a re-statement of the conventions related to the Attorney should emphasise that he or she does not share in the collective responsibility of ministers for Cabinet decisions" (p 26).

The Question of Accountability

55. We now consider the implications of reform for the Attorney's accountability. The Constitutional Affairs Select Committee report stated that "it does not necessarily follow that in order to be accountable to Parliament the Attorney has to be a member of either the Commons or the Lords".[40] Indeed, even under the current arrangements the extent of the Law Officers' accountability to Parliament was "heavily circumscribed".[41] Instead, the Committee suggested, an independent Attorney could be accountable to Parliament in the same way as the Parliamentary Ombudsmen and the Electoral Commission. The report also cited the example of the Lord Advocate in Scotland who, even if he or she is not a Member of the Scottish Parliament, can take part in parliamentary proceedings (but may not vote) and be questioned by MSPs about the exercise of his or her functions.[42]

56. Professor Jowell pointed out that some of the Attorney's functions should not be subject to parliamentary accountability anyway. For example, the Attorney is not accountable to Parliament for the provision of legal advice to the Government because "where the Government acts upon legal advice, it is its actions that may appropriately be challenged by Parliament and not the advice upon which the actions are based". The question of whether a particular Government action is legal or not is a matter for the courts alone. Similarly, Professor Jowell said, "some decisions in the area of the Attorney's prosecutorial powers are not ideally amenable to substantive parliamentary scrutiny—such as the decision not to prosecute on the ground of lack of sufficient evidence" (p 32). He did accept, though, that parliamentary accountability was important in respect of other prosecutorial decisions, such as some decisions not to prosecute on the grounds of public interest. In such cases, he said, "direct responsibility could properly be taken by the relevant minister, who would then be answerable to Parliament for the decision" (p 33).

57. Other people have been less sanguine about the question of accountability to Parliament. For example, Lord Goldsmith told the Constitutional Affairs Select Committee that the Attorney must be accountable to Parliament for his prosecutorial function, "and that means being, in my view, a member of Parliament, one or the other Houses, so that person can be summoned to the House in order to answer questions, to stand [at] the despatch box and to deal with any concerns that members have: because the Houses represent the public for these purposes and if that means being a member of the House, being a politician, then, yes, I think it needs to be a politician in that sense".[43] Similarly, Baroness Scotland of Asthal said:

"No-one has got over the difficulty about there not being anyone accountable to Parliament at the despatch box. You would not have that. You could have a select committee, there are various other mechanisms people have come up with, but what you will be giving up is there would be no-one accountable, save and in except for if you made the Ministry of Justice or the Home Office accountable for prosecutorial authority. No-one seems to like that either, I know, but that does not seem to hold. There are lots of people who have said they think that is worse, but they have not come up with a solution of somebody standing at the despatch box and being grilled to within an inch of their lives. They have not come up with anything better." (Q 71)

58. Lord Morris of Aberavon, appearing before the Constitutional Affairs Select Committee, quoted the words of former Attorney Sam Silkin QC on this point: "to whom would [an] independent non political law officer be accountable? If there were no minister through whom he could be accountable we should have to invent one and, if there were, we would have returned full circle, for accountability without control is meaningless and whatever minister was answerable for an independent law officer would in practice have to control him, else we should have the semblance of accountability and not the reality, and in my experience there is no more potent weapon in a democratic society than the reality of accountability to Parliament".[44] Lord Mayhew of Twysden's conclusion was categorical: "I do not see how [the Attorney] can be accountable to the Parliament unless he is a member of it, and I think it is absolutely essential for public confidence reasons that he should be".[45]

1 The Solicitor General is also a Law Officer of the Crown. The Law Officers Act 1997 provided that any function of the Attorney may be exercised by the Solicitor General, and the Solicitor is to all intents and purposes the Attorney's deputy. In recent years it has become customary to have one Law Officer in each House of Parliament. Back

2 The Governance of Britain: A Consultation on the Role of the Attorney General, Cm 7192. See paragraphs 20ff below. Back

3 Cm 7170. Back

4 Emeritus Professor of Constitutional Law at the University of Edinburgh and a former legal adviser to this Committee. Back

5 Professor of Law at University College London. Back

6 Now known as the Justice Committee. Back

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

8 There is no universal agreement about the number of categories into which the Attorney's role can most appropriately be divided. We believe that the formulation set out in this report is the most coherent. Back

9 The First Treasury Junior (Common Law) and First Treasury Junior (Chancery) are members of the Bar of England and Wales in private practice who receive instructions more or less exclusively from Government. The common law First Treasury Junior is known colloquially as the 'Treasury Devil'. Former Treasury Devils include: Harry Woolf 1974-79 (later Lord Chief Justice of England and Wales and now a member of this Committee); Simon Brown 1979-84 (now Lord Brown of Eaton-Under-Heywood, a Lord of Appeal in Ordinary); John Laws 1984-92 (now Lord Justice Laws); and Stephen Richards 1992-97 (now Lord Justice Richards). The Attorney General is also responsible for the appointment and operation of four panels of barristers; Government departments may instruct those on the panels to advise and conduct litigation on behalf of the Crown. See http://www.tsol.gov.uk/attorney_generals_panel_of_counsel.htm. Back

10 For example, the Racial and Religious Hatred Act 2006 (inserting new sections into the Public Order Act 1986). Back

11 See http://daccessdds.un.org/doc/UNDOC/GEN/N02/682/26/PDF/N0268226.pdf?OpenElement. Back

12 HL Deb WA 2-3 17 March 2003. Back