The Office of the Attorney General has been through the wringer since the BAE and Saudi saga last year. Some even say the crisis brought the Attorney General’s position into disrepute.
House of Lords peers went as far as to say the decision to drop the investigation into BAE exposed weaknesses in the Attorney General’s dual role as a senior law officer and Government minister. Meanwhile, legal pundits were suggesting scrapping the position altogether.
Soon after the debacle in June last year, Baroness Scotland took over the position of Attorney General from Lord Goldsmith. Within a month she launched a consultation into the future of the Attorney General – the first since the role was created in 1361.
Scotland tells The Lawyer: “When we started the consultation we hadn’t closed off any avenue as this wasn’t to be change for change’s sake, but change that would be predicated upon improvement.”
None of the sweeping changes bandied around, however, were recommended in the ‘Governance of Britain’ white paper, but it did not mean they had not been considered, according to Scotland.
Splitting the role into two – minister and law officer – was reviewed carefully. Scotland says she wanted to see if dividing the post would strengthen the function, so posed the questions: “If you have a civil servant who was responsible for giving legal advice outside of Government, would that make it more likely that the advice would be listened and adhered to, or less likely? Would the quality to hold a government to account be enhanced or reduced?”The answer Scotland came up with was the latter: the position would not be strengthened. “The Attorney General and the Solicitor General operate in both Houses of Parliament, so when challenged can be held to account,” she explains. “Parliamentarian scrutiny can’t take place if the role is undertaken by a civil servant.”
Scotland also adds that simply putting the law officer outside of government does not solve the problem of perceived politicisation. “A number of people said that if a civil servant was appointed, then that person will be subject to employment constraints by the Government as they’d be paid by the state. So would they be persuaded to act independently of the Government that is paying their salary?”It would not be satisfactory. “Sometimes that which looks incredibly simple and straightforward ends up being incredibly difficult and not actually desirable,” says Scotland.
Some simple and straightforward ideas, though, were brought in. Scotland proposes that her office should produce an annual report and other scrutiny measures should be introduced. “It’s quite a good idea to bring in a select committee. Obviously it would be up to Parliament to decide committees, but I think it would be good as we’ve never had one before.”
Scotland adds that the major change is the proposal to remove her power to direct cases brought by prosecuting bodies such as the Serious Fraud Office (SFO) and the Crown Prosecution Service.
“It was a fundamental power that helped to shape the relationship between the Attorney and directors, and it was predicated that someone would superintend,” she explains.
Although the power to direct has not been used in recent history, its existence did impact on the freedom that the directors of prosecuting bodies felt they had, Scotland admits.
The jostling for position between the directors and Attorney General will also come to an end if another of Scotland’s proposals to introduce statutory protocol is accepted. It will lay down the precise structure and relationship between the parties.
So if the BAE crisis happened again, would there be any difference in how it would play out? Scotland, pointing out that the decision about BAE was the SFO’s, believes “you would see a similar situation today”. She does, however, feel the confusion over what role the Attorney General played would not have happened.
“It would be fair to say we would now have clarity under those circumstances,” says Scotland. “One of the problems has been that people haven’t understood how the relationships work. [Through the protocol] people will have a better opportunity to understand how it works, as opposed to just those in the inner circle, allowing for more scrutiny.”
Scotland believes that many of the issues pundits have with the Attorney General’s role can simply be fixed by enhancing confidence, openness and better understanding of her position. She says there will always be decisions that are controversial, which is something that cannot be helped.
As Scotland puts it: “Some situations would have been difficult no matter who had taken the decision. If you’d have asked any legal expert to make the decision, would it have been simple? No.”