APPENDIX 2: WRITTEN EVIDENCE BY PROFESSOR ANTHONY
BRADLEY[46]
1. It is inherent in our 'unwritten constitution'
that questions may arise that, from the standpoint of legal form
and constitutional principle, give rise to difficulties of analysis.
If such difficulties do not in fact arise as often as foreign
observers might expect, this may be due to a constitutional and
political culture with long experience of the way in which state
institutions and holders of public office interact and practical
solutions are found. But this does not mean that the results of
constitutional evolution are always acceptable. Strong measures
of reform are sometimes needed.
2. Before the Constitutional Reform Act 2005,
the need for such reform in respect of the Lord Chancellor was
overdue. This office, as it had evolved, breached the separation
of powers in that it provided for a Cabinet minister to be head
of the judiciary. Such a clear breach of principle, running counter
to judicial independence, could no longer be defended. As I have
previously explored at length,[47]
the changes following that necessary reform led to the creation
of a new interface between the Government and the judiciary.[48]
3. The main question considered in this note
is whether a comparable piece of constitutional surgery is needed
in respect of the Attorney General. In July 2007, the House of
Commons Constitutional Affairs Committee recommended that the
current duties of the Attorney be split in two:[49]
"the purely legal functions should be carried out by an official
who is outside party political life; the ministerial duties should
be carried out by a minister in the Ministry of Justice".
In my opinion, this would for various reasons not be a satisfactory
reform. In summary, I consider 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 would
be better performed in other ways; and (2) a re-statement of the
essential functions of the office and the conventions that apply
to it.
4. As the Government's chief law officer, the
Attorney General has many functions that have often led in the
past, and are still likely to lead, to difficult political, legal
and constitutional tensions.[50]
The office operates at the interface between law, government and
politics[51] and the
role will often lead to pressures relating to the 'rule of law',
as politicians and media commentators look for assurance that
the Government has acted or is proposing to act according to law.
The 'rule of law' continues to be a diffuse and uncertain concept,
despite its appearance in the Constitutional Reform Act, but the
duty of the Government to act according to law is at the heart
of the concept.
5. The recommendation of the Constitutional Affairs
Committee is, in effect, that the office of Attorney General should
be discontinued and the functions transferred to other office-holders.
A related question must be whether it would strengthen or weaken
the office of Attorney if it were held by a person who is not
a minister; and, if so, whether this would enable the Government
to receive better legal advice. Another issue is, once advice
has been given, whether the change to a more independent office
would help to ensure that the Government acts in accordance with
that advice.
6. I do not consider that the answers to such
questions are at all clear-cut. They are certainly far less clear-cut
than the need to remove judicial powers from the Lord Chancellor.
I suggest that this is because the present consultation is essentially
concerned with relations among key players who are within
the Executive, not with relations between the Executive
and the judiciary. In my view, the primary functions performed
by the Attorney General are properly described as executive functions,
even if they require a greater degree of detachment from the customary
structure of accountable government than that which applies in
general to performance of executive functions.[52]
7. I doubt whether the usual 'separation of powers'
analysis (based on distinguishing between legislative, executive
and judicial powers) is easily applicable to a debate about how
power is exercised within the executive. For that debate to be
fully informed, we need to know: (a) what structures exist within
the executive (and their effectiveness) for internal control of
decision-making; and (b) what external procedures exist for ensuring
accountability for executive decisions that have been taken. The
responsibility (or accountability) of the Government to Parliament
is a fundamental aspect of the 'unwritten' constitution.[53]
That responsibility has a collective dimension (the responsibility
of the whole Government to Parliament for all that ministers do);
individual ministers also owe a personal responsibility to Parliament.
However, the conventional position in respect of the Attorney
General is that, although he or she is a minister and a member
of the Government, and (like other ministers) holds office at
will of the Prime Minister, he or she does not share in the collective
responsibility of the Government to Parliament for all purposes.
Moreover, the Attorney is entrusted with certain classes of decision
which fall outside the customary processes of collective responsibility
and are reserved to the Attorney to act in his or her own judgment
of what the public interest requires. For these decisions he or
she is individually answerable or accountable to Parliament. A
key aspect of this position in relation to prosecution decisions
is stated in the well-known 'Shawcross convention'.[54]
8. The conventions relating to this office are
complex and are often not understood, or are criticised as being
unworkable and too weak to resist the pressures of the real world.
Certainly, some distinctions drawn in the past relating to the
office are not easy to grasp. For instance, the controversy in
the 1970s over the proposed publication of the Crossman diaries
led to the Attorney General (Sam Silkin QC) seeking an injunction
against the publishers. Thereafter, a judgment from the Lord Chief
Justice, Lord Widgery, examined both the legal basis for rules
of Cabinet secrecy and the power of the courts to restrain disclosures
that breached those rules.[55]
Mr Silkin stated that he was acting in the case by his own
decision on a matter of public interest, not as a result of any
Cabinet decision; but the main evidence on which his case against
the publishers was based was given by the Secretary to the Cabinet,
presumably at the request of the Attorney, and not by decision
of the Prime Minister or the Cabinet. In the late 1980s, by contrast,
when the Attorney General sought injunctions against publication
of Spycatcher, this time the case was brought on the decision
of the Government, and was thus a matter of collective responsibility.[56]
In law, the position of the Attorney appears to have been the
same in each case. But, as a matter of ministerial responsibility,
the Attorney General would as the decision-maker have to answer
to Parliament for his role in the Crossman diaries case, but the
Prime Minister and other ministers would be answerable to Parliament
for the decision to pursue the Spycatcher book, both in
the United Kingdom and in other jurisdictions.[57]
9. These two instances illustrate different ways
in which legal action can be brought on behalf of the Executive.
By constitutional convention, although not in law, the Attorney
General wore different hats in these two matters. However, in
neither case can it be said that the Attorney was exercising judicial
power. These decisions were no more than decisions to initiate
litigation: whether the litigation succeeded or not was a matter
for the courts to decide, not the Attorney General. Any view formed
by the Attorney lacks the authority of a judicial decision. This
is the position whenever legal advice on a civil matter is given
to a department by the Attorney.
10. In respect of prosecutions, the same generally
applies, since 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. Certainly, every prosecutor
exercises an important discretion in the public interest. This
discretion cannot be undertaken competently without a close knowledge
of the criminal process, and it ought never to be based on politically
partisan considerations. But in the adversarial tradition of English
law, it does not seem helpful to describe the prosecutor as exercising
either a judicial or a quasi-judicial function. The position is
somewhat different in respect of decisions not to prosecute,
since these appear to bar access to due process of law. But the
possibility of a private prosecution is of great importance, although
it is rarely seen, and there are exceptional circumstances in
which a decision not to prosecute may be subject to judicial review.
Specific questions arise in relation to the power of the Attorney
General to prevent a prosecution (whether public or private) continuing
by issuing a nolle prosequi. This is a prerogative power
that may need to be the subject of legislation. If it is not sufficient
to rely on conventional safeguards against abuse of this power,
it would be possible to require such a decision to be approved
by (for instance) the Queen's Bench Divisional Court. In any event,
the Human Rights Act would today require the Attorney General
to take into account the effect of European Convention rights
when ordering that a prosecution be discontinued.
11. Discussion of the Attorney General's role
has often drawn attention to the duality that is said to be inherent
in the office. Lord Dilhorne, a former Attorney and later Lord
Chancellor, stated: "Every Attorney is used to wearing two
hats, and accustomed to keeping his political and legal duties
distinct".[58] I
doubt very much whether it is as straightforward a matter as this
suggests. The difficult scenarios facing the office must often
arise in shades of grey, rather than in the clear contrasts of
black and white.[59]
The view that there is a clear-cut divide between legal and political
considerations may explain why the Constitutional Affairs Committee
of the House of Commons concluded that the 'purely legal functions'
should be carried out by an official outside party political life
and the ministerial duties should be transferred to a minister
in the Ministry of Justice.
12. The lack of a bright line between legal and
political considerations applies particularly to the Attorney's
role as the Government's senior legal adviser. If government according
to law is not to become a dead letter, the Government as a whole
and all public agencies need access to reliable legal advice.
An important function of the Attorney General is to have oversight
or superintendence of the Government Legal Service in all its
emanations in the departments. This activity is one that occurs
essentially within Whitehall. It requires (a) that legal advisers
across government habitually give the best legal advice that they
can, in order (as is the duty of all legal advisers) to assist
their clients (the departments) to achieve their desired policy
goals in a lawful and effective manner; (b) that these lawyers
(and the departments that they advise) may refer difficult issues
to the Government's most senior legal adviser (the Attorney General)
for an informal or formal opinion; and (c) that such advice when
given is respected in the department concerned.[60]
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.
13. The Attorney's role in providing oversight
or superintendence of the Government Legal Service has greater
significance today than in the past for two reasons. First, the
continuing development in the law of judicial review: this has
a very wide application throughout all public life and requires
legal advice in government to be based on an up-to-date understanding
of the principles applied by the Administrative Court and in the
appeal courts. No government should be deterred from taking action
simply because of the fear that the decision might be subject
to judicial review, but good legal advice should be able to assess
the risks and implications involved. Second, the increasing prominence
that must now be given to the protection of European Convention
rights as a result of the Human Rights Act 1998.
14. There are certainly public officers of the
watchdog kind (for instance, the Comptroller and Auditor-General,
and the Parliamentary Ombudsman) who exercise a scrutinising or
investigative function on behalf of Parliament over Whitehall
departments. Their powers must be exercised in a manner that is
independent of the administrative and political pressures that
may have been operative in a decision. These officers report to
Parliament on what they find, and on the response of departments
to their findings. It would be possible to devise a similar watchdog
charged to investigate claims that departments had failed to observe
'rule of law' principles, if it were felt that the courts were
not able to do this through judicial review. (This does not mean,
of course, that I consider such a watchdog to be necessary.) But
such a retrospective role would be very different from the role
that the Attorney General performs as the Government's senior
legal adviser. And it would be constitutionally inappropriate
to expect an officer of Parliament to become involved prospectively,
as a party to the decision-making process.
15. The Attorney General's role in superintending
the Crown Prosecution Service and other prosecution authorities
is a subject of great importance but not one on which I can offer
any new comments. I consider that the role should be retained,
on the basis that it does not extend to decision-making in specific
cases and 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.
This role should engage the Attorney's individual responsibility,
and other ministers should respect this (they should not claim
credit for prosecutions that succeed, nor should they attempt
to pre-judge decisions of the courts).[61]
However, in my view the distinct character of this responsibility
of the Attorney General 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.
I suggest that this trilateral system should be replaced by one
based on joint responsibility of the two Cabinet ministers. 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. On another criminal law matter, there
needs to be 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.
16. With the similar aim of strengthening the
distinctive position of the Attorney General, as compared with
other ministers, he or she should attend Cabinet meetings only
when oral advice is required on a specific issue. A re-statement
of the conventions relating to the Attorney should emphasise that
he or she does not share in the collective responsibility of ministers
for Cabinet decisions.
17. Given these and other changes, I consider
that the office should continue to be held by a minister, and
that there should continue to be a strong convention that the
Attorney (and the Solicitor General) should be a member of one
or other House. The requirement of being a lawyer of standing
must also continue: I consider it valuable that political parties
that may need to form a government should be able to call on the
services of good lawyers who are sympathetic to their programmes,
whether or not they have previously been active in Parliament
or in politics.
18. Notwithstanding the pervasive effects of
judicial review in securing legal accountability of public authorities,
there is still a need for enhancing the accountability of government
to Parliament. Specifically in relation to the Law Officers, there
is a need for clarification and re-statement of the conventional
rules or principles that apply to them. In particular, the position
that emerged in the Gouriet controversy in the 1970s was
unsatisfactory. Despite Lord Denning's views to the contrary,
the judges did not require the Attorney to justify to them the
decision he had taken not to prosecute the post office workers,
on the ground that he was accountable to Parliament.[62]
But in Parliament Mr Silkin refused to give reasons for the
decision. It is probable that both the procedure of judicial review
and the working of Parliament have moved on since then in an age
when greater openness in government is required. It should not
be possible for the Attorney to avoid accounting for decisions
taken in the public interest without indicating the factors that
had been taken into account.
19. To summarise, a re-statement of the conventions
that apply to the office of Attorney General should emphasise
that, for many functions of the office, the Attorney has individual
responsibility to Parliament and that his or her decisions do
not engage the collective responsibility of the Government. While
the Attorney gives advice to ministers, departments and the Cabinet
as required, he or she is not to be identified with ministerial
or Cabinet decisions. The Government must continue to be able
to keep confidential the Attorney's advice, like that given by
members of the Government Legal Service, but that advice may be
published in specific cases; when this occurs, the advice should
be published in full.
20. One task of the Attorney General that seldom
comes to public notice is the oversight that the office renders
for the Parliamentary Counsel who draft primary legislation. In
my view, the function is essentially a specialised aspect of the
work of the Government Legal Service and it should continue: published
bills are for the most part within the collective responsibility
of the Government, and within the particular responsibility of
the ministers named on the bill. Under the Human Rights Act 1998,
section 19, every government bill must be accompanied with a ministerial
certificate stating whether or not the bill is consistent with
Convention rights. The two Houses are entitled to expect that
such certificates will, if necessary, have been given after the
contents of a bill have been considered closely by or on behalf
of the Attorney General. But no assumption should be made in Parliament
that the Attorney personally approves any particular legislative
proposals.
21. In a similar way, the Attorney General should
continue to have ministerial oversight of the Treasury Solicitor's
Department. While decisions as to the litigation in which departments
are concerned must be for the client department to take, there
are likely to be issues arising from the activities of the Treasury
Solicitor on which it may be necessary to seek clearance or approval
from the Attorney General.
22. Finally, I make brief suggestions (without
discussing the issues) for dealing with some of the Attorney's
tasks that are peripheral to the main functions of the office.
(a) Each House of Parliament should today be able
to secure its own legal advice, where there is a good reason for
doing so, particularly on matters affecting parliamentary privilege
and on issues involving action by ministers. The Attorney's traditional
role in advising Parliament should to this extent be modified.
(b) The Director of Public Prosecutions could be
entrusted with the Attorney's duties relating to contempt of court,
since these are within the quasi-criminal jurisdiction of the
courts.
(c) One minor function of the Attorney General that
should be discontinued or assigned elsewhere is the residual role
relating to the enforcement of charity law.
(d) Recent developments in public law (as a result
of legislation and judicial decision) make it unnecessary for
the procedure of relator actions to be kept in being.
(e) So far as I know, the position of the Attorney
as head of the Bar of England and Wales has become a purely 'dignified'
matter, and it need not be altered, except if it might be thought
to prevent a solicitor from holding the office.
(f) There should be no change in the formal position
of the Attorney General under the Crown Proceedings Act 1947,
as the residual defendant in any civil proceeding brought against
the Crown when it is not known which department should be named
as defendant.
23. I have summarised my general position on
the role of the Attorney General in paragraph 3 above, and need
not repeat it here. There is ample scope for some modernisation
of the office, and for a re-statement of the conventions that
apply to it, but I do not consider that a case has been made for
bringing the office to an end.
46 Barrister of the Inner Temple; Emeritus Professor
of Constitutional Law, University of Edinburgh; visiting fellow
at the Institute of European and Comparative Law, University of
Oxford; formerly legal adviser to the House of Lords' Select Committee
on the Constitution. Back
47
6th Report of the Constitution Committee (2006-07):
Relations between the executive, the judiciary and Parliament
(HL Paper 151), Appendix 4. Back
48
By contrast, the question of whether the Lord Chancellor should
always be Speaker of the House of Lords raised issues of
the relationship between the Government and the House that were
less pressing from a separation of powers standpoint, but this
situation had to be addressed if it were to be possible for a
member of the Commons to become Lord Chancellor. This factor reinforced
the case that existed in any event for the House of Lords to be
able to elect its presiding officer. Back
49
5th Report of the Constitutional Affairs Committee
(2006-07): Constitutional Role of the Attorney General (HC
306). Back
50
See for instance the discussion of numerous controversial affairs
involving the Attorney General a quarter of a century ago in J
L Edwards, The Attorney-General, Politics and the Public Interest
(1984). For a perceptive discussion of more recent events,
see N. Walker, "The Antinomies of the Law Officers",
in M Sunkin and S Payne (eds), The Nature of the Crown: a Legal
and Political Analysis, pp 135-69. Back
51
As Edwards said, "This unique office stands astride the intersecting
spheres of government and parliament, the courts and the executive,
the independent Bar and the public prosecutors, the State and
the citizenry at large" (op cit, p viii). Back
52
Although my conclusions in this note are broadly in line with
those expressed by Lord Lyell of Markyate in his letter to the
Attorney General's Office dated 5 November 2007, the analysis
made in this paragraph departs from his description of the office.
The divergence may in part arise from the different meanings that
can be attached to the term, 'executive'. Back
53
Though important aspects of that responsibility (including the
duty of ministers to give 'accurate and truthful information'
to Parliament) were in March 1997 adopted in written form by each
House, and are now included in the Ministerial Code. This
successful development suggests that, contrary to the view of
the Joint Committee on Conventions (Session 2005-06, Conventions
of the UK Parliament, HL Paper 265/HC 1212) it is possible
and may be helpful to state constitutional conventions in writing
without changing their status. Back
54
Briefly mentioned in the current consultation paper, in footnote
12. Back
55
A-G v Jonathan Cape Ltd [1976] QB 752. Back
56
A-G v Guardian Newspapers Ltd [1990] 1 AC 109. Back
57
Walker (note 51 above) at p 148 cites para 26 of the Ministerial
Code issued by Mr Blair in 1997, which stated: "In criminal
proceedings the Law Officers act wholly independently of the Government.
In civil proceedings a distinction is to be drawn between proceedings
in which the Law Officers are involved in a representative action
on behalf of the Government, and action taken by them on behalf
of the general community to enforce the law as an end in itself".
This statement also appeared in the versions of the Code issued
in 2001 and 2005. However, it is omitted from the Ministerial
Code issued by Mr Brown in 2007, where the section on the
Law Officers (paras 2.10-13) is much briefer. In particular, the
Code omits the summary of different circumstances in which
"it will normally be appropriate to consult the Law Officers"
(para 22, 1997 and 2001 edition; para 6.22, 2005 edition) and
replaces it with the bald command (para 2.10, 2007): "The
Law Officers must be consulted in good time before the Government
is committed to critical decisions involving legal considerations."
If one of the difficulties in the present position of the Law
Officers is inadequate understanding of their role, it is unfortunate
that the Ministerial Code is now much less informative
in this respect than it was before July 2007. Back
58
Quoted in J L Edwards, The Attorney-General, Politics and the
Public Interest (1984), p 200. The quotation continues with
a discussion of what was at that time considered to be the duty
of the Attorney General to appear as counsel at all tribunals
of inquiry, even if the conduct of his political colleagues was
being inquired into. At the Bank Rate Inquiry in 1957 into an
alleged leak involving prominent Conservative ministers, the future
Lord Dilhorne told the tribunal, "It is my duty to act here,
as in some other fields, without any regard to political considerations
of any kind, and in discharging this duty I am not in the least
concerned with-indeed I am completely indifferent to-political
or personal results". Walker (above, note 51, p 148)
applies the term 'institutional schizophrenia' to the role of
the Law Officers. Back
59
To quote Edwards again, discussing the need for the Attorney to
avoid partisan political considerations in deciding what is in
the public interest, "The outcome of this kind of assessment
of alternative courses of action involves a political judgment
that may well go in opposite directions, according to the political
and personal philosophy of the Attorney General in office"
(op cit, p viii). It is of course simplistic to suppose that there
is always only one 'objective' opinion that can be given in meeting
a request for legal advice. Back
60
The three versions of the Ministerial Code issued in 1997,
2001 and 2005 all referred specifically to the role of the Law
Officers in resolving doubts that departmental legal advisers
may have regarding the legality or propriety of proposed legislation
or administrative action. This reference is absent from the 2007
version: see note 58 above. Back
61
Cf Constitutional Reform Act 2005, s 3(1): duty of all ministers
to 'uphold the continued independence of the judiciary'. Back
62
See Gouriet v Union of Post Office Workers [1978] AC 435. Back
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