Reform in a teacup?

The government's 'constitutional renewal' proposals offer piecemeal reforms of key British institutions

So the Attorney General’s (AG) role is not to change after all, despite a solemn undertaking from Gordon Brown last summer. Lady Scotland will remain the government’s chief legal adviser, carry on as a minister and continue to attend Cabinet. She will stay in Parliament. She will still ‘superintend’ the prosecution services.

So much for the Constitutional Affairs Committee’s recommendation that the AG’s legal functions should be transferred to a civil servant and her ministerial functions handed over to the Ministry of Justice. Instead, the government’s thinking seems to be much closer to the advice I offered on this page two weeks ago: leave well alone.

True, there are to be adjustments. The AG will not be able to give ‘directions’ in an individual case. But that was not something she ever did, if indeed she could. Now she will have very clear powers to block prosecutions – as well as investigations by the Serious Fraud Office (SFO) – to safeguard national security.

The draft Constitutional Renewal Bill published last week will remove the need for the AG to give her consent before certain offences can be charged. Consent by the Crown Prosecution Service (CPS) will be good enough in more than 30 crimes currently requiring her signature. For nine further offences – including failure to disclose that one is a struck-off or suspended solicitor – the Director of Public Prosecutions will have to give his personal approval. But the AG’s consent will still be required before anyone can be prosecuted for offences including contempt of court; terrorism; disclosure of official secrets; biological, chemical or nuclear attacks; war crimes; and sanctions-busting.

So what happened to Gordon Brown’s insistence that ‘the role of the [AG], which combines legal and ministerial functions, needs to change’?

It never was a case of ‘let’s change for change’s sake’, Lady Scotland insists. And the balance of power between the AG and the prosecuting services has certainly shifted. ‘There used to be this understanding that the final say, in the event of disagreement, was with the Attorney,’ she tells me. ‘We have given that away.’

But surely the prosecutors for which she is responsible — the CPS, the SFO, HM Revenue & Customs – will continue to seek her advice? She is already consulted informally by prosecutors for whom she has no statutory oversight, including military prosecutors and others scattered around Whitehall.

That is to be resolved by a protocol, which will set out ground rules under which the AG will superintend the three main prosecuting authorities. Then surely it would be better to bring these other prosecuting authorities under her supervision?

‘What we have found is that these prosecutors are very committed to retaining the Attorney General, because they see value in that,’ she replies. She acts as a sounding board for difficult decisions.

Last week’s announcement seemed to go down pretty well, with few echoes of the three controversies that cropped up on her predecessor’s watch: Lord Goldsmith’s advice that it was lawful to invade Iraq; the SFO decision to stop investigating a Saudi arms deal; and the cash-for-honours affair. So does Lady Scotland think the government has satisfied critics of the current role of the AG?

‘I think we have come to a reasoned position,’ she says. ‘There are a few who say the Attorney should no longer be a minister. On the other hand, there are quite a number who say the role has accumulated issues over time because they were merited and you should not make changes based on perception and not reality. We think it’s probably about right.’

There was even less controversy over important reforms to judicial appointments, also to be found in the draft bill. The arrangements for appointing members of the new Supreme Court have not even been used yet, but already they are being amended to remove the prime minister from the process while strengthening the role of ministers in Scotland, Wales and Northern Ireland. We are told that the prime minister will also lose his role in the appointment of other senior judges, though I cannot see how the current draft will achieve this.

One reason for delays in judicial appointments was that the Constitutional Reform Act 2005, which created the Judicial Appointments Commission (JAC), was ‘over-engineered’. The new legislation would streamline the process by transferring responsibility for medical checks from the JAC to the Ministry of Justice. The draft bill would also remove the need for the Lord Chief Justice to consult the Lord Chancellor before deploying judges in particular roles.

One unexpected change is the creation of a panel to make representations to the JAC on behalf of potential applicants for judicial office. Its members will represent bodies that have an interest in the commission’s functions – presumably the Bar Council and the Law Society as well as the associations representing magistrates, district judges, circuit judges and so on. The ‘panel must have regard to the need to encourage diversity’.

You would hardly have thought that Baroness Prashar and Lady Justice Hallett, the two most senior commissioners, would need reminding of this. But no doubt it will keep everybody happy.

joshua@rozenberg.net