Attorney General

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“The Attorney General has a duty to ensure that the Queen’s ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principal requirement of which is that the government itself acts lawfully.” (Lord Mayhew of Twysden)

 “…(Attorney General has) a role to play in Parliament, in government, in assisting the courts, and in defending the rule of lawIt is only in a system of government where the rule of law is respected that the law is truly legitimate, and legitimacy is the essence of the authority of a democratic governmentToday the authority and sovereignty of a democratic Parliament is supported and legitimised daily by the work of our courts.” (Dominic Grieve QC MP, former Attorney General)

 

“The Attorney General is also the head of the Government Legal Service”…”a member of key Cabinet Committees at which rule of law issues may arise (and on which the Lord Chancellor does not sit). These include the Parliamentary Business and Legislation Committee and the National Security Council. These are important avenues through which potential rule of law issues can be noted and raised at an early stage. In addition, the Attorney General scrutinises all Government bills for their compliance with human rights law and legal propriety.”…(House of Lords, Select Committee on the Constitution 6th Report of Session 2014–15)

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The Attorney General for England and Wales is the chief legal adviser of the Crown in England and Wales, and a member of the UK Government. The Attorney General provides legal advice to the Government of the day. By convention, and unlike the papers of other ministers, this legal advice is available to subsequent governments… The Attorney General oversees the small Attorney General’s Office and also has responsibility for the Government Legal Department, which is headed by the Treasury Solicitor. When a Government Department has no internal legal capacity, the Government Legal Department provides it, instructing independent counsel where necessary. The Attorney General is a barrister and can appear in court in person, though in practice he/she rarely does so, and then only in cases of outstanding national importance. In those cases the Government Legal Department provides his back-up. The Attorney General also has supervisory powers over prosecutions, including those mounted by the Crown Prosecution Service, headed by the Director of Public Prosecutions; the Serious Fraud Office; and the Revenue and Customs Prosecutions OfficeThe Attorney General has public interest functions, being, for example, the trustee of default where a sole trustee has died, and can also take cases to the Supreme Court where points of general legal importance need to be settled. The Attorney General is assisted by the Solicitor General for England and Wales, currently Robert Buckland. Under the Law Officers Act 1997, the Solicitor General may do anything on behalf of, or in the place of, the Attorney General, and vice versa. Under the Government of Wales Act 2006, the Counsel General for Wales is the chief legal adviser to, and a member of, the Welsh Government.  (Wikipedia)

Mr Grieve (Dominic Grieve, MP, former Attorney General) stressed that Government lawyers were not, however, “spies in government departments telling me when ministerial colleagues might be on the point of going off the rails”. With only a small number of staff in the Attorney General’s Office, the Law Officers are “certainly not in a position to be overseers of the rule of law”.   Another limit on the Attorney General’s capacity to be a guardian of the rule of law is that he or she, although of cabinet rank, is not a full member of the Cabinet. In recent years it has become standard practice for the Attorney General to attend all Cabinet meetings, but unlike the Lord Chancellor they do so at the invitation of the Prime Minister, not as of right. Moreover, as the Government’s legal adviser rather than a minister (as Lady Scotland described it “in government but not of government”), the Attorney General may be privy to less of the policy discussions in which rule of law issues could arise…..With the post-reform Lord Chancellors playing a more limited and reactive guardianship role, the Law Officers have become ever more important in this respect. Although the Law Officers are not, as Mr Grieve told us, in a position to oversee the rule of law more generally across government, they do have a significant role supporting the Lord Chancellor in his duty to do so. This includes alerting the Lord Chancellor to potential rule of law issues, and working with him or her in Cabinet in uphold the rule of law, including defending judicial independence. As Lord Falconer told us: “the Attorney and the Lord Chancellor acting together are quite a powerful force in government.” (House of Lords, Select Committee on the Constitution 6th Report of Session 2014–15)

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“Speech by Dominic Grieve QC MP to BPP Law School” (25 October 2012)  – Attorney General Role extracts (www.gov.uk)

 

 1. Relationship between Parliament and the Judiciary:

The sovereignty of Parliament and the supremacy of the law of the land… may appear to stand in opposition to each other, or to be at best only counterbalancing forces. But this appearance is delusive; the sovereignty of Parliament… favours the supremacy of the law, whilst the predominance of rigid legality throughout our institutions evokes the exercise and thus increases the authority of Parliamentary sovereignty. (Dicey, over a century ago)

“….Some have argued that the sovereignty of parliament is being eroded and that the power of the judges is increasing to the point of their becoming the governors.” (Dominic Grieve)

 

2.  Role of the Attorney General:

Attorney General’s role is “to support and protect the rule of law…..assist the courts in protecting the judicial process and strengthening the rule of law in this country.

  • Chief Legal Adviser to the Crown;
  • Government minister responsible for superintending the Crown Prosecution Service, the Serious Fraud Office, and Her Majesty’s Crown Prosecution Service Inspectorate; and
  • Guardians of certain public interest functions (i.e. the role of protector of charity and of the administration of justice).

As Chief Legal Adviser:

“…advise government departments on how policy can be achieved in a lawful and proper way; and the Solicitor General and I, together with the Advocate General for Scotland, have a specific role in the legislative process, considering each Bill as it approaches introduction for the same purpose. Ultimately the Law Officers (a term which includes all 3 of us) have the power to block a Bill if there are unresolved concerns about its legality or propriety….Law Officers endeavour to support the government and Parliament in achieving its legislative aims in a proper and lawful way…”

As Guardian of the public interest:

“….the power to intervene in legal proceedings in the public interest. For example, most recently in the sad Nicklinson case as to the law on assisted dying…”;” …assist the courts by acting as an impartial friend of the court, either in person or by appointing advocates to the court to help with questions of law; “responsibility for bringing contempt of court proceedings….receive referrals from judges, the police and members of the public where it is thought that the conduct of some individual, company or organisation is prejudicing or impeding the fairness of court proceedings and the course of justice; and it is my responsibility to decide whether to bring an action to protect the court proceedings from such interference….”

 

 3. Do courts of this country may apply and enforce legal limits on the sovereignty of Parliament?

1.“…it has been suggested that the process of interpretation of legislation by the judiciary allows the courts effectively to limit the sovereignty of Parliament. It is my view that the courts do no such thing. I realise that this may go against the fashion (at least in certain parts of the media) for presenting the judiciary and Parliament as pitted against each other; but it is my sincerely held view that the courts interpret and apply the laws that Parliament makes faithfully and dispassionately…The starting point for statutory interpretation today remains the literal interpretation of the text, and it is only if there is genuine ambiguity and uncertainty that extraneous material can be relied upon as a tool. There are, of course, interpretative tools such as the presumption against legislation having a retrospective effect, or ousting the ability of the courts to exercise judicial review of government actions. Such rules of interpretation are not however unique to statutory interpretation. The interpretation of private contracts is also performed with the assistance of such techniques. No one suggests this limits freedom to contract…In my view these rules of interpretation demonstrate a fundamental respect for Parliament and its legislative role. They are founded on norms shared by Parliament and the courts as to how it will typically be fair for legislation to take effect, and the courts proceed on the assumption that Parliament acts in the interests of justice when it legislates. It also recognises the reality that however well Parliament legislates (and we have only ourselves to blame when we don’t) some interpretation may be needed.”

2. “…views are periodically expressed about the possibility that the courts could in the future identify constitutional principles so fundamental that legislation in breach of those principles would not be enforced by the courts, however Parliament expressed itself-a return to the ideas raised by Coke….no court has ever suggested that an act of Parliament comes close to such a violation of principle. Ours is country with a long history of the legislature and judiciary co-existing peacefully and of governments and parliaments legislating with respect for individual rights and the rule of law. If it were to arise it would probably mean that our constitution was broken….that as long as the House of Commons remains a democratically elected assembly representative of the electorate it serves, the courts would have a duty to apply Parliament’s legislation, although judges might always exercise the right to resign….”

3. “…the suggestion that the sovereignty of the Parliament of the United Kingdom has been curtailed by the legal doctrine of the ‘supremacy’ of EU law…It is that the effect of the 1972 European Communities Act in our law is that our domestic courts may disapply legislation enacted by Parliament if it conflicts with EU law…it is equally clear in our law that the European Communities Act did not alter the existing legal principle that what Parliament did in incorporating European law, Parliament can also undo.

 

4.   Parliamentary privilege:

“….the relationship between Parliament and the courts… is the exclusion of judicial oversight of Parliament’s activities. This exclusion is referred to as parliamentary privilege. It is, in essence, a rule that the conduct of Parliamentary business cannot be subject to judicial challenge.The way in which Parliament makes its laws is controlled and policed by Parliament, and not by the courts…..Parliamentary privilege is an aspect of the supremacy or sovereignty of Parliament as a lawmaker….the courts of this country cannot review primary legislation to determine whether it is constitutional, fair or proportionate. But Parliament would not be truly sovereign if the courts were able to exercise oversight of the way in which it made its laws, because it would then follow that the courts, and not Parliament, could determine whether a law had been properly made and therefore whether it should be enforced…. Perhaps the most topical of the aspects of Parliamentary privilege is the freedom of speech of all those who participate in Parliamentary proceedings. That freedom is enshrined in Article 9 of the Bill of Rights 1689 which says:

That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.” ….

privilege remains of paramount importance to ensure that Parliament in carrying out its functions is independent, and that any person contributing to its work, is able to speak out without fear or favour….

Although Article 9 is an absolute privilege, Parliament has for some time accepted in its own procedures a sub judice rule; that it should not bring up matters in debates, questions or motions which are awaiting adjudication in a court of law. This rule reflects the long-standing comity between the Parliament and the courts which means that each takes care not to intrude on the other’s territory, or to undermine the other’s authority. The overwhelming majority of Parliamentarians are careful to observe this convention.

 

Concluding remarks by Dominic Grieve QC, MP:

The respect of the courts in this country for the sovereignty of Parliament is integral to their role as guardians of the rule of law. So, too, Parliament’s respect for the courts as interpreter of our law is essential to its legitimacy as a supreme legislator

It is only in a system of government where the rule of law is respected that the law is truly legitimate, and legitimacy is the essence of the authority of a democratic government. The origins of Parliament lie in the need for medieval monarchs to have the approval of a representative assembly to legitimise their decisions. Today the authority and sovereignty of a democratic Parliament is supported and legitimised daily by the work of our courts.”

 

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