Reform of the Attorney General
Over the last 500 years, the Attorney General has ensured the Government follows the law, supported the rule of law, protected public interest and promoted improvements to the administration of justice. They have also been the leader of the Bar and closely involved with the Bar’s affairs. However, in recent years there has been great controversy caused by events including the Attorney General’s opinion being used as legal cover for the Invasion of Iraq, the Attorney General’s part in the termination of the BAE investigation and the “cash for honours” issue. This has lead to Gordon Brown making reform of the role of the Attorney General a part of his larger constitutional reform. The proposed changes were set out in the consultation paper “The Governance of Britain – A Consultation on the Role of the Attorney General”. Baroness Scotland of Asthal, QC, the current Attorney General, said in an article written for Counsel Magazine back in May 2008 that “we wanted to see whether there was anything fundamentally wrong with the way the role was structured, and if not wrong, how could we improve clarity and transparency in what the law officers do.”
There are three core roles of the Attorney General. The first is to be legal advisor to the Crown and represent the Crown in the courts. Second, the Attorney General is the Minister of the Crown with responsibility for superintending the CPS, Serious Fraud Office (SFO), Revenue and Customs Prosecutions Office and the Armed Forces Prosecuting Authorities. The Attorney General, alongside the Home Secretary and Secretary of State for Justice, is responsible for criminal justice policy. The Attorney General is also the guardian of public interest - particularly in charity matters. Lastly, the Attorney General is in charge of the appointment of “advocates to the court” and “special advocates” and legal proceedings such as commencing and terminating.
The main concern has arisen from the Attorney General’s political status as a government minister and the conflict between the Attorney General’s role as the Government’s chief legal adviser and her separate role as chief processor and guardian of public interest. This conflict has sparked the question as to whether the Attorney General or another person should have responsibility for individual prosecution decisions and prosecution policy. Critics say that the Attorney General cannot give independent legal advice to the government when they are part of it, therefore one of the issues is whether the person giving legal advice to the government should be part or separate from it. The controversy caused by the Attorney General’s opinion being used as legal cover for the Invasion of Iraq has also raised the question as to whether the advice given by the Attorney General should be made public.
The defence of the present role is that there is a public benefit in having an Attorney General who is a political insider as they are more likely to have credibility than an opinion offered by an outside lawyer. Moreover, ministers are more likely to listen to the advice of someone they consider as being “one of them”. In terms of whether advice should be made public, the government has said that the Attorney General’s advice to government is the same of the advice to a client, in that it should always be subject to legal privilege and therefore is not disclosable unless government chooses to make it so.
The proposed solution involves the appointment of a general counsel to the government, taking on the Attorney General’s role as the government’s chief legal advisor while responsibility for prosecutions would be made completely separate from government. The relationship between the Attorney General and the prosecuting authorities will be changed, with the Attorney General no longer having any power to take decisions in an individual case, except in certain circumstances to safeguard national security. The Attorney General will have to report to Parliament every time this power is used. A protocol, which will be publicly available, will set out how the Attorney General and prosecutors are to operate in relation to one another and a different protocol and annual report by the Attorney General will be given to Parliament to improve accountability. The Attorney General’s power to enter a nolle prosequi (Latin for not to pursue) will be abolished and the oath as guardian of the rule of law will be amended to have the Attorney General “respect the rule of law”. This shifts the basis on which the Attorney General gives legal advice to be in the public interest rather than political convenience or party loyalty.
These changes are not intended to meet a short term goal as they are a small part of the UK’s large constitutional reform, which takes a long term view. These changes are not yet perfected nor set in stone as they have yet to go through further scrutiny and a thorough pre-legislative process. Baroness Scotland, QC, feels these changes are a success as they “modernise and clarify the role of the Attorney... I believe they will increase public trust and confidence in my role and enhance the rule of law”.
Others, however, feel that the Attorney General having less to do with government gives rise to other problems. They believe that if the Attorney General were to now take too active a role in the day-to-day running of their departments then they would be considered to be “interfering” and would therefore not get the best out of the people that they superintend.
Nevertheless, I believe that this Consultation Paper successfully finds the balance in reforming long established institutions whilst maintaining the role which has worked for centuries. If legislation were to be subsequently enacted it will effectively address the current concerns of the Attorney General’s role in the 21st Century.
There are three core roles of the Attorney General. The first is to be legal advisor to the Crown and represent the Crown in the courts. Second, the Attorney General is the Minister of the Crown with responsibility for superintending the CPS, Serious Fraud Office (SFO), Revenue and Customs Prosecutions Office and the Armed Forces Prosecuting Authorities. The Attorney General, alongside the Home Secretary and Secretary of State for Justice, is responsible for criminal justice policy. The Attorney General is also the guardian of public interest - particularly in charity matters. Lastly, the Attorney General is in charge of the appointment of “advocates to the court” and “special advocates” and legal proceedings such as commencing and terminating.
The main concern has arisen from the Attorney General’s political status as a government minister and the conflict between the Attorney General’s role as the Government’s chief legal adviser and her separate role as chief processor and guardian of public interest. This conflict has sparked the question as to whether the Attorney General or another person should have responsibility for individual prosecution decisions and prosecution policy. Critics say that the Attorney General cannot give independent legal advice to the government when they are part of it, therefore one of the issues is whether the person giving legal advice to the government should be part or separate from it. The controversy caused by the Attorney General’s opinion being used as legal cover for the Invasion of Iraq has also raised the question as to whether the advice given by the Attorney General should be made public.
The defence of the present role is that there is a public benefit in having an Attorney General who is a political insider as they are more likely to have credibility than an opinion offered by an outside lawyer. Moreover, ministers are more likely to listen to the advice of someone they consider as being “one of them”. In terms of whether advice should be made public, the government has said that the Attorney General’s advice to government is the same of the advice to a client, in that it should always be subject to legal privilege and therefore is not disclosable unless government chooses to make it so.
The proposed solution involves the appointment of a general counsel to the government, taking on the Attorney General’s role as the government’s chief legal advisor while responsibility for prosecutions would be made completely separate from government. The relationship between the Attorney General and the prosecuting authorities will be changed, with the Attorney General no longer having any power to take decisions in an individual case, except in certain circumstances to safeguard national security. The Attorney General will have to report to Parliament every time this power is used. A protocol, which will be publicly available, will set out how the Attorney General and prosecutors are to operate in relation to one another and a different protocol and annual report by the Attorney General will be given to Parliament to improve accountability. The Attorney General’s power to enter a nolle prosequi (Latin for not to pursue) will be abolished and the oath as guardian of the rule of law will be amended to have the Attorney General “respect the rule of law”. This shifts the basis on which the Attorney General gives legal advice to be in the public interest rather than political convenience or party loyalty.
These changes are not intended to meet a short term goal as they are a small part of the UK’s large constitutional reform, which takes a long term view. These changes are not yet perfected nor set in stone as they have yet to go through further scrutiny and a thorough pre-legislative process. Baroness Scotland, QC, feels these changes are a success as they “modernise and clarify the role of the Attorney... I believe they will increase public trust and confidence in my role and enhance the rule of law”.
Others, however, feel that the Attorney General having less to do with government gives rise to other problems. They believe that if the Attorney General were to now take too active a role in the day-to-day running of their departments then they would be considered to be “interfering” and would therefore not get the best out of the people that they superintend.
Nevertheless, I believe that this Consultation Paper successfully finds the balance in reforming long established institutions whilst maintaining the role which has worked for centuries. If legislation were to be subsequently enacted it will effectively address the current concerns of the Attorney General’s role in the 21st Century.
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