Attorney-General: a case for reform?

Peter Cheney reviews the Attorney-General’s work to date and considers the potential for more powers.

While John Larkin has kept a low public profile since his appointment as Attorney- General, on 25 May last year, his role is a significant addition to the devolved system of government. A local individual is now the Executive’s chief legal advisor and guarding the public interest for the first time in nearly 40 years.

Northern Ireland had 11 Attorneys-General between 1921 and 1972, starting with Richard Best and ending with Basil Kelly. Upon direct rule, the post passed to the Attorney-General for England and Wales.

The 2000 Criminal Justice Review recommended a non-political, independent role for a local Attorney- General. However, this means he has less power than some of his counterparts and has resulted in some calls for reform.

Progress

In one of his first decisions, the AG directed that a fresh coroner’s hearing be held into the killing of Francis Bradley by the SAS in 1986. The families of 11 civilians killed by soldiers in Ballymurphy in 1971 have also submitted a call for a new investigation.

When sworn in on 9 June, Larkin described the independent bar as a “strong and protective force in and for the rule of law.”

In November, Larkin visited the European Court of Human Rights in Strasbourg. He has also launched the Living Law programme, designed to give secondary school pupils a “fresh and lively introduction” to law and the justice system.

Larkin has also called for limits on legal fees so that “people of modest means won’t be required to pay the bills of the wealthy”, adding that senior lawyers who had benefitted from “historically very generous” funding should offer pro-bono services.

The Attorney-General is supported by 13 staff and is paid a £197,000 salary, higher than the Prime Minister (£142,000).

His spokesman explained that this was set by the First and deputy First Ministers, against levels of judicial pay.

For comparison, a Lord Justice of Appeal earns £196,707 per year.

Powers

The Attorney General is appointed by the First Minister and deputy First Minister, acting jointly. Barristers and solicitors “of at least ten years’ standing” are eligible; the term of office lasts five years and is renewable.

At present, his main responsibilities are as follows:

• Chief legal adviser to the Executive (and leading on litigation arising from that advice);

• Referring Assembly legislation which appears to be ‘ultra vires’ (i.e. beyond its powers) to the UK Supreme Court;

• Appointing the Director and Deputy Director of the Public Prosecution Service;

• Guardian of the rule of law i.e. representing the public interest and ensuring that all persons and legal entities are accountable to the law.

As the Attorney-General is unelected, he cannot present legislation or vote in the Assembly. Indeed, the holder is barred from standing for election. During Assembly proceedings, the Attorney- General is free to refuse to answer questions or requests for documents which may prejudice criminal proceedings.

The First and deputy First Ministers have agreed that the Attorney-General’s advice will be sought on the “most important and complex legal matters” facing the Executive and ministers.

Unlike the direct rule Attorney-General, John Larkin has no power to superintend the Public Prosecution Service and cannot, for example, intervene to appeal unduly lenient sentences. “The reason for that isn’t entirely clear to me at least,” he said on his appointment.

The PPS has instead become a non- ministerial department. Its Director consults the Attorney-General on its annual report and amendments to the Code for Prosecutors.

The Criminal Justice Review said that, although the Attorney-General would be non-political, it was necessary to go further and ensure that he did not supervise the PPS. “In other words, there should be no power for the Attorney General to direct the prosecutor, whether in individual cases or on policy matters,” it recommended.

Before justice was devolved, unduly lenient cases were referred to the Court of Appeal by the direct rule Attorney General. Cases are now referred by the Director of Public Prosecutions, who could be regarded as a party to the proceedings.

SDLP Justice Spokesman Alban Maginness says this situation is “unsatisfactory” and the previous referral system had worked very well.

His Alliance counterpart Stephen Farry is “open” to reviewing the Attorney- General’s powers but adds a note of caution “as the current arrangements have only been in place for a matter of months.”

Appealing of lenient sentences, accountability on the Assembly floor and the transparency of advice could all be considered. Farry suggested that the role could be reconsidered in conjunction with a review of the Public Prosecution Service, a decade on from the Criminal Justice Review.

Purpose

Within the British Isles, Larkin’s role is most similar to his southern counterpart, Paul Gallagher, who sits outside government but can participate in ministerial meetings where required. The Irish Attorney-General is responsible for a limited number of prosecutions for fisheries and extradition offences, unlike his northern neighbour.

The Attorney-General for England and Wales (Dominic Grieve) and the Scottish Lord Advocate (Elish Angiolini) are both ministers.

The Northern Ireland Attorney-General has met his Irish and England and Wales counterparts twice since 9 June.

Brice Dickson, a former Chief Human Rights Commissioner, sees the Attorney- General’s purpose as being “a completely independent guardian of the public interest” within the legal system.

“This means providing impartial advice to the Executive, overseeing the civil and criminal justice systems to ensure they operate fairly, and taking legal proceedings whenever necessary to uphold the public interest in the rule of law,” he continues.

The Attorney-General must also “run a very lean machine” in his or her own office, which should be “completely transparent in explaining its outlays.” Dickson would like to see the Attorney- General having more powers to review the PPS’ activities. He would also advise him to “take steps to ensure that the legal system does not fall into further disrepute on account of the excessive fees that are paid to some lawyers.”

In Dickson’s view, the Attorneys-General from 1921 to 1972 did preserve their independence despite previous connections with the governing party. “I would hope that the current and future AGs would follow that lead in putting political considerations entirely out of their mind when exercising their functions,” he concluded.

Justice Minister links

Alban Maginness questioned what relationship existed between the Justice Minister and the Attorney-General. In response, a Department of Justice spokeswoman said that meetings between the two men had so far been “arranged as required” but she anticipated that these will take place at least quarterly.

“Beyond these meetings there is a great deal of correspondence and informal contact,” the spokeswoman added. The Justice Minister is also required to consult the Attorney-General before making appointments to the Law Commission and before agreeing its work programmes.

As with all ministers, the Justice Minister can seek the Attorney-General’s advice on legal matters and seeks his views on the competence of legislation before it is introduced to the Assembly.

Maginness also emphasised that the Assembly needs to work out how he relates to the Assembly. The Procedures Committee has started an inquiry into this subject, which is on hold until the Department of Justice completes its consultation into the Public Prosecution Service’s accountability. This is due to start early this year.