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 adviser and representative in legal matters, although still specialising in litigation rather than advice. The beginning of the 20th century saw a shift away from litigation and more towards legal advice. Today, prosecutions are carried out by the Crown Prosecution Service and most legal advice to government departments is provided by the Government Legal Department, both under the supervision of the attorney general.
Additional duties include superintending the Serious Fraud Office, HM Crown Prosecution Service Inspectorate, Service Prosecuting Authority, and other government lawyers with the authority to prosecute cases. The attorney general advises 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. As per 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.
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.[8] 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.[9] Although a valuable position, the attorney general was expected to work incredibly hard; although Francis North (1637–1685) 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.[9] 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".[8] 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.[10]
During the 16th 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.[10] 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.[11] During the constitutional struggle centred on 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.[12] 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 adviser to both the government as a whole and individual government departments.[13] Despite this change, until the passing of the Homicide Act 1957 the attorney general was bound to prosecute any and all poisoning cases.[14]
However, in recent times the attorney general has exceptionally conducted litigation in person before the courts, for instance before the House of Lords in A and Others v Secretary of State for the Home Department,[15] where the legality of the government's detention of terrorist suspects at Belmarsh was at issue.
Role and duties
The attorney general is currently not a Cabinet minister, but is designated as also attending Cabinet.[16] 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,[4] starting with Sir Rufus Isaacs in 1912 and ending with Douglas Hogg in 1928.[17] 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.[4] 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.[4] As a government minister, the attorney general is directly answerable to Parliament.[18]
The attorney general is also the chief legal adviser of the Crown and its government, and has the primary role of advising the government on any legal repercussions of their actions, either orally at meetings or in writing. As well as the government as a whole, they also advise individual departments.[4][19] 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.[14] By convention, they represent the government in every case in front of the International Court of Justice.[14] The attorney general also superintends the Crown Prosecution Service and appoints its head, the Director of Public Prosecutions. Decisions to prosecute are taken by the Crown Prosecution Service other than in exceptional cases i.e. where the attorney general's consent is required by statute or in cases relating to national security.[20] An example of a consent case is the Campbell Case, which led to the fall of the first Labour government in 1924.[21]
The attorney general also superintends the Government Legal Department and the Serious Fraud Office.[19][22] 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.[23] They are responsible for making applications to the court restraining vexatious litigants, and may intervene in litigation to represent the interests of charity, or the public interest in certain family law cases.[24] They are 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.[23] 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".[8] 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 their actions are treated as coming from the attorney general.[25]
^"Work of the Attorney General evidence session". parliament.uk. 8 September 2015. Retrieved 10 September 2021. The Justice Select Committee holds a one-off session on the work of the Attorney General on Tuesday 15 September.
Carroll, Alex (2007). Constitutional and Administrative Law (4th ed.). Pearson Longman. ISBN978-1-4058-1231-3.
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): 304–312. doi:10.2307/844539. ISSN0002-9319. JSTOR844539.
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