Legal Village

Reform of Attorney General role is not risk-free

Posted 14/09/2007 by Jonathan Djanogly

On 26 July the Government published a consultation paper on the role of the Attorney General, in which it examined “ways to strengthen confidence in the administration of the justice system and in the rule of law through reform of the historic role of the Attorney General”.

Certainly, the demand for a review of the role of the Attorney General has been heightened as a result of the controversy surrounding the decision to go to war in Iraq, the cash for honours inquiry and the discontinuance of the Al Yamamah arms inquiry. Over Iraq the controversy was caused not only by the almost unprecedented disclosure of the Attorney’s legal opinion a matter of days before the war on 17 March, 2003, but also that an earlier (leaked) opinion of 7 March that year apparently showed his opinions to have been initially more equivocal. This discrepancy between the two documents, unsurprisingly fuelled claims that the Attorney had changed his mind between these two dates because of political pressure from inside government, though he has denied such claims.

Much of the controversy has been due to the secrecy that has surrounded the role of Attorney General and the advice that he has given to government. He/she is often called upon to offer legal advice either in writing (via a formal opinion or by writing a letter) or orally (for example, during a Cabinet meeting). And yet despite this, the Attorney’s advisory role is, because of a Law Officer’s Convention, perhaps the least transparent. The need for secrecy, however, means open advice is simply not a viable option.

The law states that the Attorney General has “superintendence” over the Director of Public Prosecutions, the director of the Serious Fraud Office (SFO) and the equivalent in Her Majesty’s Revenue & Customs. But the legislation fails to explain what the word means, or the way in which the relationship between the parties works. For example, in relation to the Al Yamamah arms inquiry, why did the Attorney General take the decision in the December 2005 and September 2006 Shawcross exercises and yet the director of the SFO took responsibility for the decision in the December 2006 Shawcross exercise? It would be helpful to have a more concrete definition of the Attorney General’s role that could have practical application. However, at the same time, it is imperative that any such definition should allow for the flexibility which is required for the Attorney General to fulfil his many functions.

As the chief Law Officer of the Crown, the Attorney General is currently the Crown’s principal legal adviser, with ministerial responsibility for areas of criminal and civil justice, as well as exercising certain functions as guardian of the public interest. However, the past few months have seen an increasingly high barrage of disparaging remarks regarding this role. The Government says it will deal with this by implementing a series of reforms to alter radically the function of the Attorney General. I, as well as fellow members of the Conservative Party, am concerned that any wide-sweeping changes could result ultimately in more harm than good.

It is indeed the case that the Attorney General has a variety of roles and thus possesses a number of different ‘hats’. This puts him in a curious and sometimes controversial position, as Lord Goldsmith put it: “at an intersection point between politics and the law [who fulfils] a role as Government minister, legal adviser, prosecutor and upholder of the public interest”.  

Some people have argued that any politically-appointed Attorney General is unable to separate the role of guardian of the public interest and independent minded legal adviser from that of political minister.  To perform the former task, so the argument goes, the Attorney General should remain detached from the day-to-day fray of politics and therefore not be a parliamentarian. Yet the latter role requires the Attorney General to engage in party politics. Accordingly, the conflicts inherent in the role are such that constitutional reform demands that the roles be split.

We will therefore need to be very careful that that any changes to the role of the Attorney General are aimed at resolving the problems rather than instituting reform for its own sake. The Government says it is fully committed to enhancing public confidence and trust in the office of Attorney General in the aftermath of recent events. This is an admirable objective. However, it is important to consider the effect of the reform rather than simply assuming that all change is a good thing.

A situation where the Attorney General continues to be the in-house lawyer of government but ceases to be a Member of Parliament or the House of Lords would only reduce his accountability to Parliament. This, I fear, could result in an Attorney General with little understanding of the inner workings of Parliament and possibly with greater partisan allegiance to the Government than currently exists with the post being awarded to the members of the two Houses of Parliament.

We must remember that while there are potential dangers of partisanship in the current role, there are also great strengths in having law officers with a deep understanding of the Government’s thought processes. Furthermore, the current constitutional position is that, ultimately, the Attorney’s responsibility is to the Crown rather than to politicians.

The issue of reform is not just a question of defining the Attorney General’s role’s by a series of constitutional changes that look good on paper. This is something that must translate into a practical working system that commands the respect of the public.  The Conservative Party is not closed to reform per se – but we shall need to be convinced that any alternative is going to improve what currently exists.