Attorney General's Office

Attorney General: The role of the Attorney General in the 21st Century

CHECK AGAINST DELIVERY

No working day for me passes without being reminded of the history of the Office of Attorney General. Just inside the entrance to the building that houses my office is a picture of Lawrence del Brok who is often regarded as the first King's Attorney. It was in around 1247, over seven hundred years ago, that he was appointed to sue "the King's affairs of his pleas before him".

The first person to be called "Attorney General" was John Herbert who was appointed as the King's principal law officer in 1461. His picture is a little further down the corridor. Beyond him hang his successors, pictures and latterly photographs of all the Law Officers winding up the stairs, Attorney and Solicitor by Attorney and Solicitor up to the present day. Fortunately it is a tall building.

Attorneys and Solicitors they may all have been, but just as the pictures and photographs show the dramatic change in fashion over the years, and the male dominance of the role, so history reveals how the role has changed, function adding to function as the times demanded, forging in the piecemeal and unplanned fashion that marks our constitutional settlement the complex office that the Attorney General is today.

The pictures and photographs reveal little of what these Law Officers thought; but we know that many of them found the role difficult and burdensome. Sir John Jervis, who was Attorney in the middle of the nineteenth century, complained that only a person who had held the office could have had any conception of the labours of an Attorney General. "Nobody who has not experienced it" he said "can have a notion of the wear upon the constitution", by which, I should be clear, he meant his own health.

One of my seventeenth century predecessors, Francis Bacon, described the role of Solicitor General as "one of the painfulest places in the Kingdom" and the posts of Solicitor and Attorney as "the extreme painful places wherein we serve". Yet, I should add, history also records that Bacon went to rather a lot of trouble to land the job of Attorney General, and he was a Law Officer for ten years, so he must either have quite liked the pain, or thought it worth enduring.

Some Law Officers have had more reason than others to complain, of course: the most extreme perhaps was John Cooke, the first Solicitor General of the English Commonwealth, who in 1649 led for the prosecution in the trial of King of Charles I only to be rewarded with execution for high treason after the Restoration, the only Law Officer to be hanged, drawn and quartered. So far.

I have to say that I was aware of none of this when I was appointed to the post of Attorney General, back in the early summer of 2007. Perhaps that is just as well though let me be clear I have no complaints.

But what really struck me when I took on the role was its breadth and complexity. I had had no idea of the range and number of the Attorney's functions; and I was surprised by that as by the time of my appointment I had been a barrister for thirty years, a QC for sixteen, and a Minister for eight. If my knowledge as an insider was so limited, what hope was there for those more distant from the role?

The Review
I had only been in the post of Attorney General a few weeks when the Prime Minister launched the "Governance of Britain" Green Paper setting out a series of proposals for constitutional reform. Among those proposals was a commitment to reform the role of the Attorney General. We began the process of honouring that commitment almost straightaway, in July 2007, with the publication of a consultation document. The process continued until last summer so you will appreciate that for most of the time that I have enjoyed the extraordinary privilege of holding the office of Attorney General, I have also had the task of reviewing and reforming the role and ensuring it is fit for our times.

At the outset of the Review we were very clear about three things: first of all we wanted a comprehensive public debate with the widest range of interested parties; second, we had no preferred option for reform; and third, our overriding objective was to enhance public confidence and trust in the office of Attorney General.

And underlying this were two certainties: the first was that the key to the success of the review was education because in order to change something you have to understand it and in the case of the role of the Attorney General there was a lot of misunderstanding.

And the second was that, while I was totally committed to the challenge of making whatever reforms were necessary to achieve our objective, I was also absolutely clear that we were not going to make change for the sake of it. As I put it at the time, "the test for any proposal for change should be whether it enhances the effective administration of justice, the maintenance of the rule of law and the protection of the public interest".

We did not shy away from the issues in the consultation; indeed we embraced them with an open mind. We set out the pros and cons of the current arrangement and asked the relevant questions: should the role of Chief Legal Adviser to the Government be separated from that of a political Government Minister? And if so, who should exercise the role? What would be the possibilities for reform if the Attorney General were to remain the Government's chief legal adviser? Should the Attorney General's role in relation to criminal proceedings be changed? And what changes would be necessary to the Attorney General's public interest functions?

And (I hope I am not labouring the point) we did not just leave it to people to respond to the consultation; we went looking for comments at a series of meetings and seminars with a number of groups like representatives of the prosecuting authorities, and academics with an interest in constitutional and legal issues and of course we published an analysis of the consultation responses and set out the key messages from them.

Informed by that process we published a draft Bill which was subject to scrutiny by the Joint Committee on the Constitutional Reform Bill and by the House of Commons Justice Committee which, like its predecessor, always showed a keen interest in my role and was loud in its calls for fundamental change.

After two years, one Green Paper, one White Paper, and two Parliamentary Committee Reports the Government reached and announced its decision in July 2009. The Government decided that the office of Attorney General is fundamentally sound and that while some significant reforms were needed these did not require any change in the law.

Now that our task is complete, I am delighted to have this opportunity to explore with you how I see the role of Attorney General, and to explain the changes that we have made. Much of this is difficult and often controversial, involving as it does the management of tensions at the heart of Government, and the delicate balance we often have to strike, in order to uphold the rule of law, to ensure fairness and independence in prosecution decisions, and to protect the public interest. But for the reasons that I shall give here I am absolutely certain that settlement that we have reached is the correct one.

The Outcome of the Review
"The Attorney General has to give his days to law and his nights to politics which leave, in days of late parliamentary sittings, but little out of the twenty-four hours for the man himself." So wrote a nineteenth century commentator in a rare expression of sympathy for the lot of the Attorney General.

The Attorney General is indeed where law and politics meet. The role, combining as it does the roles of Chief Legal Adviser to the Government, Minister, and guardian of the public interest, is a undoubtedly a constitutional oddity. The Consultation document recognised that the focus of the debate on the role of the Attorney was the tension between the various functions of the Attorney General, being a Minister and being an independent guardian of the public interest and performing superintendence functions, for example on decisions relating to sensitive prosecutions; and the tension between being a party politician and a member of Government, and the giving of independent and impartial legal advice.

Were we crafting a constitution from scratch would we have designed the role like this? Perhaps not. But would we undo, shall we say, 700 years of evolution without a great deal of care? Certainly not. So we approached our task, mindful of the settlement that our constitutional history has bequeathed, mindful that the bequest is not sacrosanct, determined to test it for its suitability to our own age.

And that is exactly what we did. I have no doubt that the role of Attorney General will change in the future as it has done so many times in the past. But after the analysis, the talk of tensions and of contradictions, I say simply this: for all the problems, which I acknowledge, no suggestion that an Attorney General in modern times has in fact taken a decision on the basis of political or otherwise improper considerations has been substantiated. The consultation exercise did not provide any evidence to support this sort of allegation.

I suspect that many of you are thinking what about the advice on the military intervention in Iraq; what about BAE; what about cash for honours? Well those were all, in their different ways, difficult and controversial to say the least. And there are of course many more such difficult and controversial issues that have to be decided by the Attorney General that do not get any, or much, publicity. But it is the issues that are difficult and controversial; and that will be the case whoever has to take them.

Which leads me to a further question to those who would seek fundamental reform of the Attorney's role: what sort of system are you going to put in place that allows those difficult and controversial decisions to be made and then ensures that they are upheld? What alternative model has been proposed that would be as good as the one we have? As I said earlier, and at the beginning of the consultation process, "the test for any proposal for change should be whether it enhances the effective administration of justice, the maintenance of the rule of law and the protection of the public interest". I have seen no proposal for change that really satisfies those tests.

So let us not apply nice theoretical tests to the role of Attorney General and watch the role fail them; let us see whether the role works in practice. And if it does not need fixing, why break it?

So it is that the Review has concluded with a significant but balanced series of non-statutory reforms which the Government believes will achieve the aims of the review.

There is to be no change to the role of the Attorney General who will remain as Chief Legal Adviser to the Government, guardian of the public interest, and a Government Minister who is a senior lawyer. The Attorney will remain as superintendent of the main prosecuting authorities in England and Wales, though most of the changes that we are making to the role of the Attorney relate to the superintendence function, to enhance the independence of the prosecutors and clarify the relationship with the Attorney. I will say more about that later.

I, the Government, make no apology for coming to this conclusion. As I have said before, it has been a real challenge to preserve all that is good, which upholds the rule of law, which makes for transparency, which delivers real integrity to the people of our country.

The Rule of Law
It has become clear to me that the various functions that I discharge, that curious collection of tasks that are perhaps better described than defined, have gathered around the Attorney General because those functions are all in a real way about the rule of law and its protection, preservation and promotion.

When I took office as Attorney General I swore an oath that I will "duly and truly minister The Queen's matters and sue The Queen's process after the course of the Law and after my cunning … I will duly in convenient time speed such matters as any person shall have to do in the law against the Queen as I may lawfully do, without long delay, tracting or tarrying the Party of his lawful process in that that to me belongeth. And I will be attendant to The Queen's matters when I shall be called thereto."

As part of the reforms that we are to make to the office we will be amending and modernising the wording of the Oath to make the obligation to support the rule of law even more explicit. But I do not doubt that though the language of the current oath may be obscure, it was nevertheless clear to me that I was swearing to act in accordance with the law and to uphold the rule of law.

I have spoken many times before on what I understand the rule of law to mean and be and so I hope you will forgive me if I do not explore that theme in detail this evening. I will however borrow from the former Attorney General, Lord Mayhew of Twysden who said "The Attorney General has a duty to ensure that the Queen's ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principle requirement of which is that the Government itself acts lawfully".

Or as I like to put it, the Attorney General is asked to do is to keep the Government and its actions within the circle of justice.

And I fundamentally and passionately believe that it is because the Attorney General is a senior lawyer, an independent professional, who is the Chief Legal Adviser to the Government and a senior Minister in the Government and guardian of the public interest that he or she is able to keep the circle of justice firm, to police its boundaries.

It is precisely because the Attorney General is where law and politics meet that the Attorney General can discharge that role so effectively: in Government; of the Government; independent within Government.

How do I think the Attorney General does that? I speak here first of all of the Attorney General as Chief Legal Adviser to the Government. Being a senior Minister puts the Attorney in a strong and secure position to provide sometimes unwelcome legal advice. My mere presence signals the importance that the Government attaches to legality and propriety, not just because I am there to give advice but because I am there to see it adhered to. I can say "no" to Ministerial colleagues knowing that they will accept that advice; and they will accept it because with my political hat on I am trusted; with my legal hat on I am an independent professional. I will not tell them what they want to hear because they want to hear it, but I will seek to give advice which will enable them to do what they want to do if it can properly be done within the rule of law. These are not contradictions; they are complements.

All of this is derived from my position of strength within the Government. Would any alternative model be able to ensure that the rule of law was guarded in the same way? Giving advice is not about "yes" or "no"; it is a complex business; anyone with complete freedom to shop for advice could simply go from adviser to adviser until he or she heard what they wanted to hear. If the adviser is sufficiently secure to be able to work to meet the needs of the client while being able ultimately to say "this far and no further", how much better the rule of law, and notions of legality and propriety are protected.

Of course I cannot and do not do this on my own. Another important and perhaps overlooked way in which I as Attorney General police the boundaries of the circle of justice is through the Government lawyers. Inevitably as the Government's Chief Legal Adviser I do not get to see all the legal issues with which the Government has to deal. I get involved with difficult or high profile cases, or arbitrate between Government Departments when they disagree on a point of law. But as these are the tip of the mound of legal issues that confront the Government, so I sit at the apex of a structure that deals with most of them that never come near me; that enable all the decisions, all the litigation, and the policies with which the Government is concerned to be measured against our domestic and international obligations and fall within the circle of justice. And I passionately believe that as leader of the Bar, as a member of the Bar Council, as a senior member of the profession I serve as a reminder to the 2000 lawyers in the Government Legal Service whom I oversee that I and they are lawyers first and that we are all the guardians of the rule of law.

And this makes justice and the rule of law real. For the rule of law can only have any real, that is to say practical, meaning where all the organs of the state, and in particular the executive, are mindful of their obligation to respect it, and do respect it. And in the first instance it is government lawyers who achieve that by telling their clients what they need to know rather than what they want to hear; and government lawyers are able to do that because they know that they are supported by a Government Minister who is doing the same thing and wants, demands, that they do the same thing.

Let me say some more about my role as guardian of the circle of justice. My guarding role is not just discharged as legal adviser: I have an important role in relation to legislation, ensuring compatibility with Convention rights, checking for legal and constitutional propriety, supporting the work of the Parliamentary Counsel and making myself available to them to raise concerns about the legality or propriety of the legislation that they are being asked to draft. I consider questions of devolved competence, of EC issues, of the proper allocation of power. Much of this is conducted in private so does not get much talked about. A necessary safeguard of course but perhaps an unfortunate obstruction to a wider understanding of the role of the Attorney and the safeguard of the rule of law.

The Attorney General's role in relation to criminal prosecutions is similarly about upholding the rule of law, and it is the Attorney's position as a senior lawyer and Government Minister that enables the role to be discharged effectively.

The Attorney General superintends the main prosecuting authorities, that is to say the Crown Prosecution Service, the Serious Fraud Office and the Revenue and Customs Prosecutions Office. Now no one seriously suggests that the Government should have no role at all in relation to prosecutions - prosecution policy is a fundamental responsibility of the Government, and we have to ensure that prosecution decisions are made properly and fairly by a service which has the capability and calibre to undertake these critical functions on behalf of the public, and we have to account to Parliament and the public for the effective provision of this vital public service.

So within Government, which Minister is best placed to discharge the role? Should it be, as some have suggested, a Minister in the Ministry of Justice, which already has responsibility for the courts, sentencing policy, prisons and probation? I believe the advantage of giving this responsibility to the Attorney General as currently configured is that, by virtue of having also a role in giving robust and independent legal advice to colleagues in Government, the Attorney is already exercising within Government an independence and legal probity, which will further enhance the protection of the independence of prosecution decisions, while at the same time being able to work closely with Cabinet colleagues to ensure that prosecution policy and the provision of an effective prosecution service retains a high priority within Government.

But some reform was required and has now been instituted.

To help to clarify and explain how we manage a relationship with the prosecutors which safeguards independence but also provides effective accountability, we have as part of our programme of reform agreed and now published a Protocol, which sets out when, and in which circumstances the Attorney will or will not be consulted, and how we engage with each other. The Protocol serves as a reminder that the Directors of the prosecuting authorities exercise their statutory functions subject to the superintendence of the Attorney General, who is accountable to Parliament for the Directors' functions in relation to prosecutions and for their work and the work of their departments. The Attorney in turn is responsible for safeguarding the independence of prosecutors in taking prosecution decisions. The Attorney General is not told about nor has any involvement in the conduct of the vast majority of individual cases around the country, and prosecution decisions are taken entirely by the prosecutors save in exceptional circumstances.

Those exceptional circumstances are where my consent is required to bring a prosecution. When I do that I act independently of Government applying well established prosecution principles of evidential sufficiency and public interests.

I might also very exceptionally exercise the power to give a direction in an individual case where necessary to safeguard national security. Successive Attorney Generals have proceeded on the basis that the superintendence relationship entails a power of direction in individual cases, though no recent Attorney has in fact sought to give a direction in relation to an individual case. Under changes reflected in the Protocol, I will no longer have the power to give a direction in an individual case. This marks a significant shift from the current arrangement. But I have decided that I should be able to give a direction in relation to cases which threaten national security, because Ministers are in the end responsible for protecting the nation and so Minister have the expertise that prosecutors will not necessarily have. I think it extremely unlikely that I will ever have to exercise the power, but if I do that I will be required under the Protocol to report to Parliament so far as compatible with national security.

Other reforms to my role will will be made when time allows. I am thinking here in particular about the consent function that I currently exercise. The current hotchpotch of offences which can be prosecuted only with my consent is incoherent; for some the need to consent at all is long gone; for others the consent of the Director of Public Prosecutions provides sufficient safeguard. But for a few offences, the Government believes that there is still a need for the consent of the Attorney General, for more serious offences where there is a greater public interest consideration which the Attorney is best placed to protect.

I should say something here about my public interest role, though that is perhaps the least controversial and the one that has been least touched by the review of the role.

My role as Guardian of the public interest covers such matters as my role as protector of charity, functions in relation to contempt of court; a power to take part in or instruct the Queen's proctor to intervene in certain family law proceedings relating to marriage. I may take decisions under the Freedom of Information Act in relation to papers of a previous administration; I may bring or intervene in legal proceedings in the public interest. I have the power to bring contempt proceedings to protect criminal trails and the administration of justice. It is a long and eccentric list, linked by the fact that in each case what I am required to do is to act in the public interest and independently of Government. It makes me think, if I have not already done so when considering my other roles, that if there were no Attorney General you would need to invent one; the general factotum of our constitutional settlement.

I have already mentioned reform to the oath of office. In addition I will lay before Parliament an annual report concerning the exercise of my functions. For full accountability of my role is essential, and I want to do everything I can to help Parliament more effectively to call me to account.

I do not underestimate the need to enhance public confidence in the role of Attorney General; nor do I underestimate the size of the task. But it is not a task that is completed simply by a change in the law, or the drafting of a protocol. It is hard and it takes time; it can be created slowly over time and lost in a moment. It is won by honest and transparent dealing and kept in the same way. It is not the taking of difficult or controversial decisions that loses confidence; that after all is what Government is for; it is when those decisions are taken for the wrong reasons or when the public fear that the decision maker is not being straight with them that the confidence is lost.

Over the coming weeks and months I hope to be able to make a number of speeches looking more closely at aspects of my work as Attorney General and the issues for which I am responsible; at the prosecution service, at criminal justice, at the rule of law. And as I do I will be drawing on all the varied aspects of my role assisted by the tensions within that I consider to be creative rather than destructive. Now that the Government has reached a settled position on my role, I look forward to making the significant reforms to my role work in practice, so that we can achieve the enhancement of the effective administration of justice, the maintenance of the rule of law and the protection of the public interest that we sought all along and continue to seek.