Proposals for change However, not all of the committee was prepared to be browbeaten by “experience”– we were all too con- scious that “expertise” (even from ex- experts) always seemed to trump judgement. I convened a cross-party group, including three Conservative MPs and a Labour Peer, as well as my own Liberal Democrat colleagues to propose a completely rewritten chap- ter on the Attorney General’s role.We proposed six main changes:
• Separating the political and legal functions of the Attorney General;
• Publishing the Attorney’s legal advice where it is referred to in support of a political case being put forward by the government;
opment of criminal justice policy, and their offices are largely confined to the provision of legal advice and supervision of the system of crimi- nal prosecutions.” In Ireland, the Attorney General
has no executive responsibilities and Article 30 of the constitution expressly prohibits him or her from being a Member of the government. In Scotland, while the Lord Advocate (the equivalent role north of the border), remains a member of the Executive, he is not a Member of either the Scottish or the U.K. Parliament, yet remains accountable to it.
It appears that it is only in
Westminster that no one must walk the hallowed ground (still less sit on the seats) of the House of
responsible Minister, who might have communicated their wishes to the Attorney for a final decision. Crucially, a government that decides – for whatever reason – to involve itself in the prosecution (or lack thereof) of the criminal law should be accountable for having done so; it should not be able to hide behind a cloak of supposed “independence” either in the office of Attorney General or that of the Director of Public Prosecutions. The new Attorney would not sit
in Parliament and would only attend cabinet when legal advice needed to be given at the invitation of the Prime
Minister.The cross-party group believed strongly that she should not attend merely on the assumption that advice might be
“We need to reinforce and restate the principle that the Attorney’s role is not to hold the government line but to uphold the rule of law.”
Lord Tyler
• Preventing the Attorney from sitting in either House of Parliament;
• Excluding the Attorney from cabinet meetings, except when legal advice is required;
• Ending the Attorney’s role in formulating criminal justice policy and
• Transferring responsibility for interventions in individual cases to Ministers.
These would be radical changes,
but they are the only way to solve the “two hats”
problem.The recom- mendations reiterate those of the cross-party, unanimous conclusions of two House of Commons’ select committees. They reflect an overwhelming consensus among those who see it as their role to apply critical analysis to the British constitution, rather than simply defend it because things have always been this way. Indeed, “our” way is not even the choice of most countries with a similar legal
system.The CAC reported:“In the majority of the main common law jurisdictions, it appears that Attorneys General do not have min- isterial responsibility for the devel-
Commons without first being elect- ed a Member of it. We need to reinforce and restate
the principle that the Attorney’s role is not to hold the government line but to uphold the rule of law. His or her advice should therefore be made public wherever it is used to support a political case for action (or inac- tion) of one kind or another. It is no longer acceptable for Ministers to ask Parliament and the public to take their judgements on trust. No jury would accept a defence predicated on legal advice that could not be revealed, and nor does the rigorous court of public opinion. Similarly, the process for inter-
vening in a criminal prosecution ought to be made more transparent. The function could rest with the Attorney, but where political deci- sions do affect the prosecution of justice, it must be clear that this is so.We therefore accepted, as the CAC had done, that it would be a major departure for the government to abandon any prospect of some purchase in prosecutions where national security was generally affected.We said, though, that where these decisions were taken, they should be properly traceable to a
316 The Parliamentarian 2008/Issue Four
required, since she would inevitably become entangled in debates on public
policy.The political functions of the present Attorney General can easily be transferred to a Minister in the Ministry of Justice, the rightful and logical repository of responsibil- ity for formulating criminal justice
policy.That Minister would sit in one or other House of Parliament. We would know they were a parti- san figure, and they could legiti- mately act as one.
The draft Constitutional
Renewal Bill in short misses the opportunity to make these changes, and thereby eschew the route to restoration of public and parliamen- tary confidence in the office of the Attorney General. Lord Falconer of Thoroton, a former Lord Chancellor, aptly labelled the Bill a “constitutional retreat” and others have commented that its measures are so unambitious that the draft has ended up neither constitutional nor renewing in character. It seeks instead to reinforce anomalies and anachronisms that had once been implicit into entrenched, explicit powers that are at odds with well-founded constitu- tional principles.
Constitutional Mix-Up
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