Amy Woolfson explains the role of the AG.
The Attorney General’s name is an unavoidable feature of case law. Law students would be forgiven for thinking that the Attorney General (more properly known as Her Majesty’s Attorney General for England and Wales) is in court almost as much as the fabled ‘R’ – who at least tends to stick to the criminal courts. But short of a passing reference to the Attorney General’s role in constitutional law textbooks (and let’s face it, students of constitutional law have plenty else to worry about), it is not clear why the Attorney General has such wide powers or what might link them to each other. This article attempts to explain some of the Attorney General’s powers and to put them in context.
Who is the Attorney General?
Since the 2010 General Election, the office of Attorney General has been held by Dominic Grieve QC MP, a barrister who was elected MP for Beaconsfield in 1997 and made silk in 2008. Dominic Grieve’s three predecessors had been appointed from the House of Lords, so an appointment from the Commons marked a return to tradition.
What does the Attorney General do?
The Attorney General is probably best known to students for his court appearances (and all those citations). The Attorney General has the power to ask the Court of Appeal to review sentences for serious crimes if they appear unduly lenient. This can come about in a number of ways, including if a complaint is made by a member of the public. For example, the Attorney General asked the Court of Appeal to review the sentence given to the disgraced former broadcaster Stuart Hall after a wave of public complaints. The Court of Appeal ordered that two of Hall’s 15-month sentences should run consecutively rather than together – effectively doubling the length of his sentence (Attorney General’s Reference No. 38 of 2013). In this case Dominic Grieve was actually in court, but he is often represented by the Solicitor General or by Treasury Counsel.
The Attorney General also has the power to refer points of law to the Court of Appeal. This usually arises where a defendant is acquitted in Crown court but the case throws up an uncertainty in the law. The defendant cannot be tried again, but the Court of Appeal can issue guidance for future cases. This is what happened in Attorney General’s Reference (No 2 of 1999) which arose from the Southall rail crash and aimed to clarify the state of mind necessary for gross negligence manslaughter.
The Attorney General has some other important functions in the criminal courts. The Attorney General upholds the Contempt of Court Act 1981. The current Attorney General has stated that he considers this a priority of his office; in 2011 he successfully prosecuted the publishers of The Sun and The Mirror for their coverage of the Joanna Yeates murder. He has also prosecuted jurors who have used social media to research or discuss defendants, and he himself has taken to Twitter (@AGO_UK) to remind the public of the injunction regarding the locations and present identities of Robert Thompson and Jon Venables.
The Attorney General oversees (‘superintends’) the Crown Prosecution Service and appoints its boss, the Director of Public Prosecutions. While the majority of prosecutions are taken by the Crown Prosecution Service, certain criminal offences, such as those arising from the Explosive Substances Act 1883, can only be prosecuted with the permission of the Attorney General. And the Attorney General is able to halt a prosecution, by entering nolle prosequi, although there is little case law on this.
The Attorney General also superintends the Serious Fraud Office and heads the Treasury Solicitor’s Department. Students who have time to watch Heir Hunters on daytime TV will be familiar with the Treasury Solicitor’s Bona Vacantia division, which advertises unclaimed estates.
Students of equity will recognise the Attorney General from charity cases. The general rule is that a trust with no ascertainable beneficiary is void. However, where the trust has a charitable purpose the Attorney General, often via the Charity Commission, will play the part of beneficiary. The corollary to this is that the Attorney General will litigate to uphold the boundaries of charity law, for example in McGovern v Attorney General  Ch 321 where the court confirmed that trusts which aim to change the law could not be charitable.
One aspect of the Attorney General’s role that may be less obvious to law students is as chief legal adviser to the Government. Unlike some of the Attorney General’s other functions, this does not generate case law. Indeed the expectation is that such advice is confidential, although the last government eventually published Lord Goldsmith’s controversial advice about the legality of invading Iraq.
But while the Attorney General is a member of the Government, he is independent of it. Speaking to the International Association of Prosecutors earlier this month, the current Attorney General, Dominic Grieve described his independence as ‘an important protection for the rule of law in the United Kingdom’, that he would ‘uphold and staunchly defend’. Arguably this sets an example for government and the legal system at home as well as abroad.
So what connects all these functions, which add up to a role that Sir Francis Bacon described as “the painfullest task in the realm”? Well, the Attorney General represents the public interest when nobody else is capable – this would explain the interventions in charity law and Bona Vacantia. And the Attorney General’s role in requesting reviews of unduly lenient sentences and clarification on points of law helps to keep the criminal law consistent and just.
Why the Attorney General needs to be a Member of Parliament is less clear. In 2006 the House of Commons Constitutional Affairs Select Committee conducted an inquiry into the constitutional role of the Attorney General, pointing to other legal systems where the AG is not a minister, such as Israel, India and South Africa.
For the moment at least, this does not appear to be a live issue and law students should look forward to seeing the AG continuing to pop up in all sorts of places – in case law, Parliament, Government – and reminding us about contempt of court on Twitter.
Amy Woolfson is an Open University student. She tweets @AmyWoolfson.