The Attorney-General could in future have to explain before Parliament the legal basis for going to war, under reforms proposed yesterday. He or she could also give up any role in deciding prosecutions.

At the same time, the Government’s chief law officer could give up regular attendance at Cabinet meetings. And the role of giving legal advice to ministers could be handed to an independent lawyer.

The proposals for reform of the 500-year-old office to make it “fit for the 21st century” were outlined yesterday by the new Attorney-General, Baroness Scotland of Asthal, in a consultation paper. She said that she had taken on the post on the understanding that the review was a first priority.

“This is a unique and exciting opportunity to examine the role and to see whether what we now have is a construct that is the best we can devise for the 21st century,” she said. While there was a need to be bold, only changes that were merited and would enhance the rule of law and the administration of justice would be made.

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Baroness Scotland will have taken up the job knowing that her first task was to take the scalpel to it

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“The functions [of the office] have developed because there was a need for them,” Lady Scotland said. The review would look at who should perform them, “whether by someone else, somewhere else and by whom”.

There would be full consultation until the end of November, she said, adding: “The Government has no preferred options and we are not coming to this with an agenda.”

Pending the consultation, Lady Scotland said, it would be “business as usual” and she would continue to sit in the Cabinet and superintend the prosecuting authorities. But in one departure, she would step aside from and have no role in any prosecution decision, pending the outcome of the review.

Among the options for change are that the role of chief legal adviser to the Government be separated from that of a political government minister and given to an independent lawyer.

The paper also proposes that “a clear commitment could be given that a full explanation of the legal basis for any decision to use military force would be given to Parliament”.

Legal advice from the Attorney-General is not generally disclosed to Parliament or the public, even if it relates to such significant questions as whether Britain should go to war. But the paper asks whether there is a case for more routine publication of the advice on the basis that Parliament and the people should be informed of the legal ground on which the Government is acting.

The matter became an issue for public concern when the previous Attorney, Lord Goldsmith, QC, gave the Government legal advice about the need to go to war in Iraq. He disclosed his advice in a written answer to a parliamentary question on March 17, 2003, and always insisted that he had acted properly in the defence of the public interest and the rule of law.

Yesteday’s paper indicates that the Government recognises that there is a need for greater transparency.

Lady Scotland said that there were “real questions” as to who should advise the executive and Parliament and a “plethora of options” to be considered. “For example, if Parliament now becomes responsible for deciding whether we take military action, there is then an issue as to who should give the legal advice to Parliament. What should be the nature of the terms? How much should be put in the public domain?”

She defended her predecessors, who she hoped would take part in the consultation, and said that they had acted with “courage and distinction” and in accordance with the rule of law.

But she added: “Some of the issues in the past have caused us to look at the tensions, some of the perceptions – some of them may be reality – and we are going to look at the issues. That is why we are looking at the function. But are we going to revisit and reopen those cases? No, we’re not.

“There’s no point in doing that now. We have to go forward. We have just got to draw a line in the sand.”

Other options for reform included in the document are:

–– Separating the Attorney-General’s ministerial responsibility for the operational delivery of prosecutions from the power to make decisions in individual prosecutions;

–– Modifying the current practice which sees the Attorney-General attend Cabinet meetings

–– Increasing accountability to Parliament by creating a committee to scrutinise the Attorney-General’s function;

–– Giving a commitment that the Attorney-General will exercise her public interest function, which is clearly institutionally separate from government, apart from in exceptional cases;

–– Conferring powers on the Attorney General to set high-level policy for the prosecuting authorities

–– Removing entirely or transferring to the Director of Public Prosecutions the requirement for the Attorney-General’s consent to the bringing of certain criminal prosecutions.

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