A division of power that does not add up
4 January 1997
Just over a month ago two decisions were announced affecting the CPS. On 26 February Crown prosecutors were refused rights of audience in the crown Court and a day later the Home Secretary announced plans to base all CPS lawyers in police stations and for the CPS to lose its right to discontinue cases it considers they are not in the public interest. These changes tie in somewhat with proposals from the Labour Party to return the CPS to police force areas.
There is an emerging political consensus regarding the future of the CPS. Instead of becoming an activist independent prosecuting organisation as in Scotland and the US, the CPS is to become basically a police prosecutions organisation presenting cases and giving legal advice but leaving policy, value judgements and law enforcement decisions to the police. Whether this is a good thing or a bad thing is a matter for argument, but certainly the experience of the CPS has not been a happy one, and many senior prosecutors who had experience in prosecuting solicitors departments prior to joining the CPS, consider that their previous role was happier than their new one.
It is noticeable that these proposals were announced by the Home Secretary, even though the Attorney General rather than the Home Secretary is the government minister for the CPS. It is also noticeable that over the last few years, all comments from the Labour Party on the future of the CPS have come from Shadow Home Secretary Jack Straw and not from the Shadow Attorney General. The danger with this trend is that the Home Office is exclusively police-driven in its approach to criminal law and the Home Secretary is always more politically important than the Attorney General. The entire relationship between the Home Secretary, Attorney General and CPS clearly needs to be looked at again.
One possibility would be to transfer the CPS to the Home Office, but this would require legislation since the Attorney General is specifically mentioned in the Prosecution of Offences Act. However the functions of the Home Secretary relating to the police and prisons could all be transferred to the Attorney General simply by Order in Council. In most countries in the Commonwealth, the Attorney General is the Minister of Justice responsible for all the various activities, which in this country are divided between the Home Secretary, the Attorney General and the Lord Chancellor. Even if the functions of the Lord Chancellor were left untouched, combining the roles of Attorney General and Home Secretary would create a Ministry of Criminal Justice.
If the Home Office lost its peripheral responsibilities for the law of marriage, for coroners' courts, for the fire service and for relationships with the Channel Islands and Isle of Man it would be left with its core responsibilities for police and prisons which could logically merge with the Attorney General's responsibilities for the CPS and SFO.
Whatever the new department was called it would be headed by the Attorney General. The constitutional fiction that the Attorney General is chief legal adviser to the government, could be changed by Prime Ministerial announcement that the Treasury Solicitor, a full-time civil servant, would in future be the Chief Legal Adviser to government.
There is no logic in the present division of responsibilities between the Attorney General and the Home Secretary. Until the formation of the CPS, the Home Secretary had responsibility for all aspects of Criminal Justice while the Attorney General had no departmental responsibilities other than as government legal adviser. Since the creation of the CPS and SFO the roles of Attorney and Home Secretary have overlapped in a way that is becoming increasingly unrealistic. Putting the CPS and police in the same department would reflect the reality of the fact that there roles are intertwined and interdependent.