APPENDIX 4: MEMORANDUM FROM BARONESS
SCOTLAND OF ASTHAL QC ON ATTENDANCE OF ATTORNEYS GENERAL AT CABINET
When I gave evidence to the Constitution Committee
on 12 December 2007, I undertook in response to a question from
Lord Morris to let you have some further information as to the
current practice whereby the Attorney General attends (but is
not a member of) Cabinet.
The historical position is discussed in full by J.
Ll. J Edwards in The Law Officers of the Crown [1964].
I enclose a copy of the relevant chapter.
But in brief, up until the early twentieth century,
the general practice was for the Attorney General not to be a
member of Cabinet but to attend in an advisory capacity when appropriate.
However, in 1912, the then Attorney General (Sir Rufus Isaacs)
was invited to be a member of Cabinet. This practice was continued
in relation to his immediate successors as Attorney General. Over
the following years, some Attorney Generals were Members of Cabinet
and some were not. The attendance as a member of the Attorney
General gave rise to a certain amount of criticism and the practice
was discontinued in 1928.
Thereafter, the Attorney General received all relevant
Cabinet Papers. The Attorney General attended on an ad hoc basis
to advise on legal or constitutional aspects of matters being
considered by Cabinet. In more recent years, the Attorney General,
as the Minster with the responsibility for superintending the
prosecuting authorities, also sometimes attended Cabinet when
matters relating to the prosecuting authorities (including spending
or efficiency matters) or relevant aspects of criminal justice
policy were being discussed.
The extent to which, on this basis, the Attorney
General attended Cabinet varied significantly in practice.
In 2005 the Prime Minister decided that the Attorney
General should routinely be invited to attend Cabinet meetings.
That practice continues today. However, neither Lord Goldsmith
nor myself have been members of the Cabinet.
I hope that you find the above helpful.
Baroness Scotland QC
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