Baroness Scotland QC: Evolving for the 21st century
As legal practitioners you will be familiar to some extent with the historic role of the Attorney General, its position at the heart of our civil and criminal justice system and the absolute integrity of the rule of law.
September 19, 2007 at 08:03 PM
5 minute read
As legal practitioners you will be familiar to some extent with the historic role of the Attorney General, its position at the heart of our civil and criminal justice system and the absolute integrity of the rule of law.
The Attorney General's role has evolved over many centuries. As part of the Prime Minister's proposals for radical constitutional reform, we are taking the opportunity to see if any aspects of that role may now be inconsistent with the proper administration of justice, the maintenance of the rule of law and the protection of the public interest in the 21st century.
The Attorney General currently exercises three principal roles. The first is as legal adviser to the Crown in the wider sense, namely to government and, on some issues, to Parliament and the Queen. The second is as a minister of the Crown, accountable to Parliament for the superintendence of the government prosecuting authorities and the government legal service. In addition, the Attorney General is, with the Home Secretary and the Secretary of State for Justice, one of the ministers responsible for criminal justice policy and for the Office of Criminal Justice Reform. The third role is as a guardian of the public interest, where the Attorney General acts independently of government to protect the rule of law.
Perceived tensions
In recent times, the varied nature of those responsibilities has given rise to a debate about the role that has focused on two areas:
- tension between the Attorney General's various functions – being a minister and a member of the Government, being an independent guardian of the public interest, and performing superintendence functions such as on decisions relating to sensitive prosecutions; and
- tension between being a party politician and a member of the Government, and the giving of independent and impartial legal advice.
Successive Attorneys General have worked on the clear understanding that they are bound to give independent, impartial and objective legal advice to the Government, consistent with their status as professional lawyers.
However, some have argued that the Attorney General, as a political appointee, cannot always be totally impartial in the legal advice offered, and there is risk of party or governmental pressure being brought to bear.
Against that is the belief that ministerial colleagues more readily accept considered legal advice from someone who, as a member of the Government, understands the full context of the policy discussion against which the advice is being given.
Like other legal advice, it is subject to legal professional privilege and is not generally published. In this way the Attorney General operates like an in-house lawyer.
Our consultation document, The Role of the Attorney General, sets out strengths in the present arrangements:
- the Law Officers' direct accountability to Parliament;
- a Cabinet-level minister with specific responsibility for prosecutorial policy able to champion the interests of prosecutors;
- mechanisms for ensuring the Government can be properly consulted through the Attorney General on public interest considerations, especially national security, in sensitive cases; and
- the Law Officers' powers to refer unduly lenient sentences to the Court of Appeal.
The document also sets out a range of possible measures for reform:
- making a clear separation between the Attorney General's ministerial responsibility for the delivery of prosecutions and the power to make decisions in individual prosecutions;
- the current practice whereby the Attorney General attends meetings of Cabinet could be modified;
- a clear commitment that a full explanation of the legal basis for any decision to use military armed force would be given to Parliament;
- accountability to Parliament could be enhanced by the creation of a Select Committee specifically to scrutinise the exercise of the Attorney General's functions;
- a commitment could be given that the Attorney General will exercise his or her public interest functions in a way that is clearly institutionally separate from Government; and
- the requirement for the Attorney General's consent to the bringing of certain criminal prosecutions could be removed entirely, or transferred to the Director of Public Prosecutions.
The consultation will take place until the end of November. Look at our website, attorneygeneral.gov.uk, read about what is under review and make your valued contribution.
We want to enhance public confidence and trust in the office of the Attorney General and we would be pleased to hear your views about how we may best enhance the role for the 21st century.
Baroness Scotland QC is the Attorney General.This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
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