"Attorney General's role should be split off, says Beith's Committee

12.00.00am BST (GMT +0100) Tue 24th Jun 2008

A report by the Justice Committee says revisions to the role of Attorney General proposed in the Draft Constitutional Renewal Bill do not answer the fundamental problem of maintaining public confidence in the role, namely, that it still combines the function of chief legal adviser to the Government with the role of Government minister. The Committee says that, despite the difficulties of drawing the line clearly between legal and political considerations, maintaining transparency and public confidence require the legal and political functions of the role to be split.

The role of the Attorney General has come under intense scrutiny in the last year in the wake of the decision about the legality of the Iraq war, the decision to halt the Serious Fraud Office's investigation into BAE, and by the 'cash for honours' police investigation. These highlighted the potential conflict in the fact that the Attorney General attends Cabinet - some of whose members were questioned as part of the police investigations into cash-for-honours - to contribute to policy, and to give legal advice. The confusion of roles is added to by the Attorney General's role in prosecutions.

The Committee welcomes some of the changes regarding the Attorney General proposed in the draft Bill but says it does not address the main concerns or the recommendations put forward in its predecessor Committee's report on "The Constitutional Role of the Attorney General" in July 2007.

The Committee says there is no justification for giving the Attorney General the formal power to halt investigations (as opposed to prosecutions) by the Serious Fraud Office, a power the Attorney General does not have in relation to police investigations into other offences. Where there are genuine national security grounds for stopping a prosecution, the Committee says it is the Prime Minister who makes that judgment and the Prime Minister who should be accountable to Parliament for it.

The Committee acknowledges that the question of publishing the Attorney General's legal advice is difficult, but says public confidence could be enhanced if all, or most, of the advice used in support of a political case being put forward by the Government was published.

Chairman of the Committee, Rt Hon Sir Alan Beith, said:

"The main areas that concern the public about the Attorney General's role arise from fears that a politician, sitting in Cabinet and with the traditional collective responsibility for the decisions of that Cabinet, may not be independent when acting as legal adviser on major political decisions, or making the decision about ending prosecutions, or in some cases investigations.

"Even if we have been able to trust individuals who have held the role to "wear different hats" and keep these two roles separate for themselves, it can't be right for that to be the constitutional position. The legal powers of the role, the powers to bring or intervene in legal proceedings, and of being chief legal adviser to the Government, could surely all be better performed by a non-political office holder. The Attorney General's ministerial role, involving political responsibility for prosecution policy, should remain with a political office holder.

"This Bill has been called more of a "constitutional retreat bill" than a constitutional renewal bill and on this issue certainly we feel that it fails to achieve the purpose given to constitutional reform by the Prime Minister: it gives greater power to the Executive and it does not add to transparency."

The report was published by the Constitutional Affairs Committee, which was re-named Justice Committee, with an expanded membership, on 6 November 2007 following the creation of the Ministry of Justice.

Committee Membership is as follows: Rt Hon Sir Alan Beith MP (Chairman), Mr David Howarth MP, Siân James MP, Daniel Kawczynski MP, Jessica Morden MP, Julie Morgan MP, Rt Hon Alun Michael MP, Robert Neill MP, Dr Nick Palmer MP, Linda Riordan MP, Virendra Sharma MP, Mr Andrew Turner, Mr Andrew Tyrie MP and Dr Alan Whitehead MP