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What’s in the job of the Government’s main legal advisor?

Submitted by on 16 Nov 2010 – 12:00

By Attorney General Dominic Grieve QC MP

It may be an ancient office – dating from 1243 – but what exactly the Attorney General and his deputy, the slightly younger (1461) Solicitor General, do is still unclear to people in all walks of life, as I’ve discovered since my appointment in May.  I’ll offer if I may, a small summary – without a test later.

The core function of the Attorney General is to make sure that Government and Ministers act lawfully, in accordance with the rule of law.  It has often been said that the Attorney General is where law and politics meet: the Solicitor General Edward Garnier and I are both QCs and politicians elected to the Commons as Conservative MPs.  We are ministers appointed by the Prime Minister and we accept collective responsibility for the policies and decisions of the Government.  We take the Government whip and vote with the Government on all Government business like any other minister or Conservative MP.

The key roles of the Attorney General are legal adviser to the Crown; Minister with responsibility for superintending the Crown Prosecution Service and the Serious Fraud Office; and Guardian of the public interest.

As legal adviser to the Crown, the Solicitor and I are independent legal advisers whose primary loyalties and responsibilities are to the Crown and the rule of law.  In performing that function it is as lawyers, and not as Conservative MPs who happen to be lawyers, that we give advice to the Prime Minister and the Cabinet, to Government departments and other Government agencies.

We give legal advice in the same way as QCs in private practice at the Bar advise their clients.  That advice is objective and given without fear or favour.  It is confidential to the client and indeed the fact that we have advised or not advised on a matter is not made public save in the most exceptional circumstances.  Our advice would have no value if tempered to suit a party political agenda, yet we regard it is a strength of the role that we give advice as trusted ministerial colleagues.

There are some who find it hard to accept that a politician and member of the Government is best placed to ensure that the Government acts lawfully in everything it does; they would argue that the current Office involves too many conflicts of interest.  Let me say that I think the current arrangement, as awkward as it may look on paper, works because it puts at the heart of Government an independent lawyer who is trusted by those he advises because he is one of them.

As Minister with responsibility for superintending the prosecuting authorities, the Attorney General is responsible for overall policies of the CPS and SFO and for their overall administration.  The Solicitor and I provide accountability for all the bodies we superintend and oversee with monthly questions in the House.  For example, towards the end of the last session I answered an urgent question about the decision of the Crown Prosecution Service not to prosecute a Metropolitan Police officer over the death of Ian Tomlinson.

Finally, I come to the Attorney General’s public interest functions which are exercised independently of government.  The functions include the power to bring or intervene in certain family proceedings.  He also has an ancient role to act in the name of the Sovereign to protect the interests of charity, usually in circumstances where there is no other person or body in a position to do so.  This role is complementary to the overarching responsibility of the Charity Commission for regulation of the charitable sector.

The Attorney General also has the power to bring contempt of court proceedings and certain criminal offences can only be prosecuted with his consent. The consent function is exercised in the public interest.  The Attorney General also has the power to refer unduly lenient sentences for certain kinds of offences to the Court of Appeal.

Responsibility for ensuring that the UK Government acts lawfully is one that we share with the Advocate General for Scotland (Jim, Lord Wallace of Tankerness QC).  The Advocate General for Scotland is the principal legal adviser to the UK Government on Scots law.  He also advises Government, jointly with us, particularly on human rights, European and constitutional law.

Since 12 April 2010, the Attorney General has also held the office of Advocate General for Northern Ireland in which role I scrutinise Assembly legislation to ensure it is within competence, have a consultative relationship with the DPP for Northern Ireland and have certain prosecution functions.

To complete the picture across the United Kingdom, the devolved administrations also have their own legal advisers.  The Chief Law Officer to the Scottish Executive is the Lord Advocate assisted by the Solicitor General for Scotland.  The Counsel General for Wales advises the Welsh Assembly Government on Welsh legislative matters and legislative competence.  The Attorney General for Northern Ireland is now appointed by the First Minister and deputy First Minister and his principal function is to advise the devolved administration.

Perhaps it’s just as well I won’t be hosting twenty questions on the Attorney General just yet, but our door is always open to Parliamentarians who have their own.