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Law of England and Wales

This article is part of the series:
Courts of England and Wales

Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in England and Wales. The current Attorney General is Baroness Scotland of Asthal, both the first female and first black Attorney General.

The position of Attorney General has existed since at least 1243, when records show a professional attorney was hired to represent the King's interests in court. The position first took on a political role in 1461 when the holder of the office was summoned to the House of Lords to advise the government there on legal matters. In 1673 the Attorney General officially became the Crown's advisor and representative in legal matters, although still specialising in litigation rather than advice. The beginning of the twentieth century saw a shift away from litigation and more towards legal advice, and today the Attorney General delegates most cases to the Crown Prosecution Service and Treasury Solicitors.

The job of the Attorney General is a demanding one, and Sir Patrick Hastings wrote while serving that "to be a law officer is to be in hell".[1] Duties include supervising the Director of Public Prosecutions in both England and Wales and Northern Ireland, Supervising the Serious Fraud Office, DEFRA and other government departments with the authority to prosecute cases in court, advising the government, individual government departments and individual government ministers on legal matters, answering questions in Parliament and bringing "unduly lenient" sentences and points of law to the Court of Appeal of England and Wales. Since the passing of the Law Officers Act 1997 duties can be delegated to the Solicitor General, and any actions are treated as if they came from the Attorney General.

Contents

History

Baroness Scotland of Asthal, the current Attorney General

The origins of the office are unknown, but the earliest record of an "attorney of the crown" is from 1243, when a professional attorney named Laurence Del Brok was paid to prosecute cases for the King, who could not appear in courts where he had an interest.[1] During the early days of the office the holder was largely concerned with representing the Crown in litigation, and held no political role or duties.[2] Although a valuable position, the Attorney General was expected to work incredibly hard; although Francis North was earning £7,000 a year as Attorney General he was pleased to give up the office and become Chief Justice of the Common Pleas because of the smaller workload, despite the heavily reduced pay.[2] The office first took on a political element in 1461, when the holder was summoned by writ to the House of Lords to advise the government on legal matters. This was also the first time that the office was referred to as the office of the "Attorney General".[1] The custom of summoning the Attorney General to the Lords by writ when appointed continues unbroken to this day, although until the appointment of Lord Williams of Mostyn in 1999, no Attorney General had sat in the Lords since 1700, and no Attorney General had obeyed the writ since 1742.[3]

During the sixteenth century the Attorney General was used to pass messages between the House of Lords and House of Commons, although he was viewed suspiciously by the Commons and seen as a tool of the Lords and the King.[3] In 1673 the Attorney General began to take up a seat in the House of Commons, and since then it has been convention to ensure that all Attorneys General are members of the House of Commons or House of Lords, although there is no requirement that they be so.[4] During the constitutional struggle centred around the Royal Declaration of Indulgence in 1672 and 1673 the Attorney General officially became the Crown's representative in legal matters.

In 1890 the ability of an Attorney General to continue practising privately was formally taken away, turning the office-holder into a dedicated representative of the government.[5] Since the beginning of the twentieth century the role of the Attorney General has moved away from representing the Crown and government directly in court, and it has become more of a political and ministerial post, with the Attorney General serving as a legal advisor to both the government as a whole and individual government departments.[6] Despite this change, until the passing of the Homicide Act 1957 the Attorney General was bound to prosecute any and all poisoning cases.[7].

However, in recent times the Attorney General has exceptionally conducted litigation in person before the courts, for instance before the House of Lords in the A and Others v Secretary of State for the Home Department case, where the legality of the Government's detention of terrorist suspects at Belmarsh was at issue. When he or she does appear, the Attorney General takes precedence over all other counsel and is addressed by the court as Mr/Madam Attorney.

Role and duties

The Attorney General is a non-cabinet minister who leads the Attorney General's Office. The rule that no Attorney General may be a cabinet minister is a political convention rather than a law, and for a short time the Attorney General did sit in cabinet,[8] starting with Lord Birkenhead in 1915 and ending with Douglas Hogg in 1928.[9] There is nothing that prohibits Attorneys-General from attending meetings of the cabinet, and on occasion they have been asked to attend meetings to advise the government on the best course of action legally.[8] Despite this it is considered preferable to exclude Attorneys General from cabinet meetings so as to draw a distinct line between them and the political decisions on which they are giving legal advice.[8] As a government minister, the Attorney General is directly answerable to Parliament.[10]

He or she is also the chief legal advisor of the Crown and its government, and his primary role is to advise the government on any legal repercussions of their actions, either orally at meetings or in writing. As well as the government as a whole, he also advises individual departments.[8] Although the primary role is no longer one of litigation, the Attorney General still represents the Crown and government in court in some select, particularly important cases, and chooses the Treasury Counsel who handle most government legal cases.[7] By convention, he represents the government in every case in front of the International Court of Justice.[7] The Attorney General also authorises prosecutions by the Director of Public Prosecutions, the head of the Crown Prosecution Service; one such authorisation was in the Campbell Case, which led to the fall of the first Labour government in 1924.[10]

The Attorney General also supervises the Treasury Solicitors, the Director of the Serious Fraud Office, the Revenue and Customs Prosecution Office and (currently) the Director of Public Prosecutions for Northern Ireland.[11] The Justice (Northern Ireland) Act 2002 creates an Attorney General for Northern Ireland who would otherwise supervise the DPP for Northern Ireland and fulfil all of the Attorney General's other duties as it relates to Northern Ireland, but this position has not yet been filled.[12] The Attorney General also has powers to bring "unduly lenient" sentences and points of law to the Court of Appeal, issue writs of nolle prosequi to cancel criminal prosecutions, supervise other prosecuting bodies (such as DEFRA) and advise individual ministers facing legal action as a result of their official actions.[13] He or she is also officially the leader of the Bar of England and Wales, although this is merely custom and has no duties or rights attached to it.[13] The Attorney General's duties have long been considered strenuous, with Sir Patrick Hastings saying that "to be a law officer is to be in hell".[1] Since the passing of the Law Officers Act 1997, any duties of the Attorney General can be delegated to the Solicitor General for England and Wales, and his or her actions are treated as coming from the Attorney General.[14]

See also

References

  1. ^ a b c d Jones (1969) p.43
  2. ^ a b Jones (1969) p.45
  3. ^ a b Jones (1969) p.44
  4. ^ Cooley (1958) p.307
  5. ^ Attorney General's Office (2007) p.4
  6. ^ Jones (1969) p.46
  7. ^ a b c Jones (1969) p.48
  8. ^ a b c d Jones (1969) p.47
  9. ^ "Oxford DNB article: Hogg, Douglas McGarel (subscription needed)". Oxford University Press. 2004. http://oxforddnb.com/view/article/33925. Retrieved 2009-08-29. 
  10. ^ a b Jones (1969) p.49
  11. ^ "Attorney General's Office for England and Wales". Attorney General's Office for England and Wales. http://www.attorneygeneral.gov.uk/. Retrieved 2009-08-29. 
  12. ^ Attorney General's Office (2007) p.5
  13. ^ a b Constitutional Affairs Committee. "Inquiry into Constitutional Role of the Attorney General". Government of the United Kingdom. http://www.attorneygeneral.gov.uk/attachments/Constitutional%20Affairs%20Committee%20-%20Functions%20of%20the%20Attorney%20General.pdf. Retrieved 2009-08-29. 
  14. ^ Elliott (2008) p.249

Bibliography

  • Attorney General's Office (2007). The governance of Britain: a consultation on the role of the Attorney General. The Stationary Office. ISSN 0101719221. 
  • Carroll, Alex (2007). Constitutional and Administrative Law (4th ed.). Pearson Longman. ISBN 9781405812313. 
  • Cooley, Rita (1958). "Predecessors of the Federal Attorney General: The Attorney General in England and the American Colonies". The American Journal of Legal History (Temple University) 2 (4). ISSN 0002-9319. 
  • Dickens, Bernard (1972). "The Attorney-General's Consent to Prosecutions". The Modern Law Review (Blackwell Publishing) 35 (4). 
  • Elliott, Catherine; Francis Quinn (2008). English Legal System (9th ed.). Pearson Longman. ISBN 9781405859417. 
  • Jones, Elwyn (1969). "The Office of Attorney-General". The Cambridge Law Journal (Cambridge University Press) 27 (1). ISSN 0008-1973. 

External links

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