Scottish Law Officers: roles and functions research report

Chapter 8 Other Jurisdictions

8.1 This chapter outlines the arrangements in a number of jurisdictions other than Scotland in relation to the role of Law Officers. Particular jurisdictions are included as of interest because they were mentioned by a former Lord Advocate or Crown Agent; or they are a jurisdiction that has, or has had, principal roles for Law Officers that include both the legal adviser to government and the prosecutor of crime.

8.2 In most common law jurisdictions, including Commonwealth countries, the Attorney General is the main legal advisor to the Government. In some jurisdictions, Attorneys General also have executive responsibility for law enforcement, prosecutions or even responsibility for legal affairs generally. So their roles and responsibilities may differ from the roles of Law Officers in the United Kingdom. Civil law jurisdictions may have similar offices, which may be described as "public prosecutor general", "procurators”, “advocates general”, "public attorneys", and other titles. Many of these offices also use "Attorney General" or "Attorney-General" as the English translation of the title. The nature of such offices in civil law jurisdictions however is often quite different from that of Attorneys General in common law jurisdictions because of the different historical context.

8.3 Also mentioned in this Chapter is a model in certain northern European countries whereby an official known as the Chancellor of Justice has a broad range of responsibilities including in relation to the lawfulness of government action and the rule of law. The existence of this office illustrates the importance given to having an office in government with the responsibility of upholding the rule of law.

8.4 A leading modern authority was said to be bewildered by the mosaic of disparate constitutional arrangements encountered on a comparative study of the role of Law Officers.^[70] However a basic alternative constitutional model distinguished from both the Scottish and English and Wales models was identified which is popular in both Commonwealth and non-Commonwealth countries. This model confers on the Attorney General the broader designation of Minister of Justice. Canada and the United States are examples.

8.5 An outline of the current arrangements for Law Officers in various jurisdictions is provided in the rest of this Chapter.^[71]

England and Wales

Attorney General

8.6 The Attorney General is the UK Government’s senior Law Officer for England and Wales and a Minister of the Crown.^[72] The Attorney General is appointed by the Sovereign on the recommendation of the Prime Minister, holding office until dismissed by the Prime Minister or resign. The Attorney General is not a voting member of the Cabinet but has Cabinet level membership of Government, meaning that they are usually invited to attend Cabinet, and do so, providing advice and input when sought by the Prime Minister.

8.7 The Attorney General has executive functions, including oversight and superintendence over certain non-ministerial departments and executive agencies including the Government Legal Department, the Crown Prosecution Service and the Serious Fraud Office. Superintendence means oversight of arm’s length bodies whereby the Director of the agency in question is subject to forms of accountability, usually political. The Director, a senior civil servant, is responsible on a day-to-day basis for operational and policy decisions of the body, and the Director is answerable to a Minister who in turn is answerable to Parliament for the relevant public functions.

8.8 As regards the Crown Prosecution Service (CPS), it is a non-ministerial department headed by the Director of Public Prosecutions (DPP). The DPP is appointed by the Attorney General on the recommendation of an appointments panel. The CPS prosecutes criminal cases that have been investigated by the police and other investigating offices. The CPS decides which cases should be prosecuted; determines the charges in more serious or complex cases and advises the police during the early stages of investigations; prepares cases and presents them in court; and provides information, assistance and support to victims and prosecution witnesses. The Attorney General superintends the CPS though it is operationally independent as regards day-to-day activities. There is a statutory basis for this relationship of superintendence, in section 3 of the Prosecution of Offences Act 1985; and it is underpinned by a Framework Agreement between the Law Officers and the DPP.

8.9 The Serious Fraud Office investigates and prosecutes complex fraud and corruption, with a remit extending to England, Wales and Northern Ireland. The Office is headed by a Director and subject to the superintendence of the Attorney General, underpinned by a Framework Agreement. HM Crown Prosecution Service Inspectorate is subject to the superintendence of the Attorney General, with the Chief Inspector under a statutory duty to report to the Attorney General on any matter connected with the operation of the Service which the Attorney General refers to them. The Attorney General has political oversight, on a non-statutory basis, of other prosecuting bodies. This reflects the need for direct accountability of a Minister to Parliament for the acts of a public body.

8.10 The Attorney General also has certain functions in relation to the criminal law, as well as superintending the prosecutorial bodies. These include: the Attorney General’s consent is required for certain prosecutions under various enactments; often as a safeguard against the bringing of prosecutions that may be thought to be inappropriate. The Attorney General may initiate certain criminal proceedings in order to protect the administration of justice, for example under the Contempt of Court Act 1981. The Attorney General may initiate certain appellate proceedings, such as a Crown Court sentence which he or she believes to be unduly lenient. The Attorney General has other public interest functions, such as power to discontinue certain criminal trials – a prerogative power to enter a nolle prosequi on an indictment and the Attorney General can enforce a public right or prevent public nuisance either by virtue of their office or at the instance of a relator (an informant).

8.11 The Attorney General is the chief legal adviser to the Crown, potentially advising the Sovereign, the Cabinet, Government Departments, individual Ministers in an official or personal capacity as provided by the Ministerial Code, and Parliament. This potentially involves acting for several different clients with a risk of conflict of interest. The Law Officers also have what may be seen as a rule of law oversight of the Government’s legislative programme. The Attorney General has power to refer a devolved Bill to the Supreme Court to ascertain whether it is within devolved competence or relates to a protected matter. The Attorney General can participate in legal proceedings on behalf of the Parliament. He or she also has public interest functions, and statutory and prerogative or common law functions in relation to the criminal and civil legal systems, for example to protect against vexatious litigants.

8.12 The Attorney General is usually an MP, or a member of the House of Lords and is answerable to Parliament for the activities of their department and other bodies which they supervise.

8.13 The Solicitor General is the junior Law Officer for England and Wales, acting in the absence of the Attorney General in terms of the Law Officers Act 1997.

Lord Chancellor

8.14 The office of Lord Chancellor is an ancient one, dating back to at least the eleventh century. The Lord Chancellor was, until the beginning of the twenty first century, a Government Minister and member of the Cabinet, a senior judge and head of the judiciary, and the presiding officer of the House of Lords. The office had particular responsibility for maintaining the rule of law and the independence of the judiciary, and latterly for constitutional affairs. The Lord Chancellor shared responsibility with the UK Law Officers for the law. Both the Lord Chancellor and Attorney General take special oaths, and their responsibilities for the law and upholding the rule of law give them a special constitutional position, one different from other ministers.

8.15 Fundamental change to the role of the Lord Chancellor came as a result of the Constitutional Reform Act 2005 (the 2005 Act). The Lord Chancellor was replaced as the head of the judiciary in England and Wales, with the Lord Chief Justice; the Lord Chancellor could be replaced as Speaker of the House of Lords by a new office of Lord Speaker; the right to sit as presiding judge was removed in creating the new Supreme Court; and the Lord Chancellor’s role in appointing judges was restricted by the establishment of the Judicial Appointments Commission.

8.16 The 2005 Act, in section 1, provided for the Lord Chancellor’s “existing constitutional role in relation to the rule of law”, and in section 3 for their responsibility to uphold the independence of the judiciary. A new oath was created (by section 17), including that the Lord Chancellor would “respect the rule of law”. Qualifications for the office are set out in section 2. Although the Lord Chancellor by convention had been a qualified lawyer, the Act did not restrict the office to lawyers.

8.17 The offices of Lord Chancellor and Secretary of State for Justice have been combined since 2007, when the Ministry of Justice was established.

8.18 The Law Officers are the only members of the Government who are required to be legally qualified now. The changes to the Lord Chancellor’s role may have made the Attorney General’s role more important, with a wider role in defending the rule of law when issues arise, alongside the Lord Chancellor.^[73]

Wales

8.19 When the Welsh Government was first created, there was no formal distinction between its legislative and governmental functions, with no Law Officer. That changed in 2007, with the Counsel General for Wales established as the law officer for the Welsh Government in terms of the Government of Wales Act 2006. That Act made significant provision for devolution in Wales, separating the executive and the legislative branches and providing primary legislative powers for the latter, and creating the Counsel General for Wales as the legal adviser to, and representative in the courts of, the Welsh Assembly Government.

8.20 The Counsel General is a member of the Welsh Government and has Ministerial status but is not a Welsh Minister. So the Counsel General may attend the Welsh Cabinet by invitation of the First Minister and does not exercise the powers and functions of the Welsh Ministers. The Counsel General currently also has the role as Minister for Delivery.

8.21 The Counsel General is appointed or removed by the Sovereign on the recommendation of the First Minister. The Counsel General has executive and advisory functions and public interest functions.

8.22 These functions include oversight of the work of the Legal Services Department in providing legal services to the Welsh Government; a role in developing Welsh Government policy on legal matters; a power to introduce a Bill even if not a member of the legislature; and making representations on matters affecting Wales. Advisory functions include advice to the Welsh Government, Ministers and civil service, and advice on legislation and legislative competence, including devolution issues; answering oral and written questions asked by the Senedd Cymru and making statements.

8.23 Public interest functions include a limited prosecutorial function, a power to institute, defend, or appear in any relevant legal proceedings, and functions to keep under review the accessibility of Welsh law. A wide power is given to the Counsel General in section 67(1) of the Government of Wales Act 2006: where the Counsel General considers it appropriate for the promotion or protection of the public interest, the Counsel General may institute in the Counsel General's name, defend or appear in any legal proceedings to which this section applies. Subsection (2) provides that the section applies to legal proceedings relating to matters with respect to which any functions of the Welsh Ministers, the First Minister or the Counsel General are exercisable.

8.24 As regards prosecutions, most prosecutions in Wales are the responsibility of the Crown Prosecution Service for England and Wales under the superintendence of the Attorney General. Under section 67 of the 2006 Act, the Counsel General may commence prosecutions in his or her own right.

8.25 Welsh Ministers however are responsible for certain prosecutions, regarding matters within devolved competence such as prosecution for the protection of animal health and welfare and prosecutions for breaches of fisheries legislation in Welsh waters.. The Counsel General has the role of overseeing the prosecutions on behalf of Welsh Ministers. In that role, the Welsh Ministerial Code provides that the function should be exercised independently of the Welsh Government. The Counsel General has the same protections against questioning on criminal matters in the Senedd as the Lord Advocate has in the Scottish Parliament. The Welsh Government prosecution code gives guidance to prosecutors about the principles to be applied when making decisions about Welsh Government prosecutions.. In certain cases the Director of Public Prosecutions (the “DPP”) may decide to take over the conduct of a Welsh Government prosecution or the DPP may institute proceedings in relation to offences where the Counsel General or the Welsh Ministers also have prosecution functions. In these instances the Code for Crown Prosecutors will apply.

Northern Ireland

8.26 The office of Attorney General for Northern Ireland became a devolved office in 2010, following the transfer of policing and justice powers to the Northern Ireland Assembly.

8.27 The Attorney General for Northern Ireland is appointed by the First Minister and the Deputy First Minister acting jointly (it may be noted that the First Minister and Deputy First Minister must always act jointly). The appointment is not regarded as a political one.

8.28 All of the functions of the Attorney General are to be exercised independently of any other person, in terms of section 22(5) of the Justice (Northern Ireland) Act 2002. The office holder is not a member of the Northern Ireland Executive.

8.29 As regards accountability, the Attorney General is required under statute to submit an annual report to the First Minister and Deputy First Minister on how her functions have been exercised. The Attorney General may participate in the proceedings of the Northern Ireland Assembly despite not being a member, though she cannot vote. The Attorney General may decline to answer questions about the operation of the system of prosecution of offences in any particular case which could in her view prejudice criminal proceedings, or which are otherwise against the public interest.

8.30 The Attorney General is the chief legal adviser to the Northern Ireland Executive, and represents it in litigation, including initiating or intervening in litigation in her own right. The Attorney General carries out a number of public interest functions including legislative competence functions. These include a power for the Attorney General to issue human rights guidance which applies to criminal justice organisations in Northern Ireland. The Attorney General is a guardian of the rule of law; and this is regarded as central to her role.^[74]

8.31 The Attorney General is able to function independently of the existence of a Northern Ireland Executive and Assembly and has done so in recent years when the Assembly had collapsed and before it had been re-established.

8.32 In Northern Ireland, the Director of Public Prosecutions (DPP) is the principal prosecuting authority. The DPP was established in June 2005 under the Justice (Northern Ireland) Act 2002, removing from the Attorney General for Northern Ireland primary responsibility for the system of criminal prosecutions. Since devolution of policing and justice to the Northern Ireland Assembly in 2010, the DPP has been designated as a non-ministerial government department and the Attorney General for Northern Ireland’s powers of superintendence over the DPP lapsed.

8.33 The DPP makes prosecution decisions in cases investigated by the police in Northern Ireland and considers cases investigated by other statutory agencies such as HM Revenue and Customs. The functions of the Director are exercised independently of any other person, in terms of section 42(1) of the Justice (Northern Ireland) Act 2002.

8.34 The Attorney General is responsible for appointing the DPP for Northern Ireland. Also, for instigating the process whereby the DPP can be removed from office or suspended. The Attorney General does not have powers of superintendence over the DPP. The 2002 Act provides for the Director and Attorney General to consult with each other on any matter for which the Attorney General is accountable to the Northern Ireland Assembly. The DPP has certain duties to consult with the Attorney General (before preparing an annual report, for example).

8.35 Following the office of Attorney General for Northern Ireland becoming a devolved office in 2010, the office of Advocate General for Northern Ireland became the UK Government’s chief legal adviser in relation to Northern Ireland. The post is held concurrently with that of the Attorney General for England and Wales.

Ireland

8.36 In Ireland, the constitutional office of Attorney General was established by the 1937 Constitution, Article 30. Under Article 30, the principal role of the Attorney General is the adviser to the Government in matters of law and legal opinion, and the Attorney General attends Cabinet meetings in that capacity.

8.37 The Attorney General has no executive responsibilities other than for the management of their own office which is responsible for handling the State’s litigation and the drafting of Parliamentary legislation as well as giving advice to Government. The Minister for Justice, Equality and Law Reform is responsible for prisons, policing, the courts and law reform. The Attorney General is also responsible for the Law Reform Commission’s vote and has the power to refer matters to them. Article 30 of the Constitution prohibits the Attorney General from being a member of the Government. However, the modern practice is for the Attorney General to attend all Cabinet meetings. The Attorney General does not necessarily have to be a Member of Parliament, and is appointed by the President on the nomination of the Taoiseach.

8.38 The House of Commons Constitutional Affairs Committee Report on the Constitutional Role of the Attorney General in 2007 noted the Irish model and the Scottish one as interesting and instructive models of de-politicised Attorneys General.

8.39 Article 30.3 of the Constitution provides that the prosecution of offences (other than summary offences) is a function of the Attorney General, or of some other person authorised in accordance with law to do so. Following the enactment of the Prosecution of Offences Act 1974 responsibility for the great majority of such prosecutions has been transferred to the Director of Public Prosecutions, an office created by the 1974 Act. The Director is independent in the performance of their functions. James Hamilton, when Director of Public Prosecutions in Ireland, explained in evidence to the House of Commons Constitutional Affairs Committee that the rationale for the creation of that office was twofold:

“Firstly, it was thought desirable to reduce the Attorney General’s workload because of the increased burden of advising the Government in relation to matters of EC law following Ireland’s accession to the European Communities. Secondly, the change was intended to avoid what was thought to be a possible public perception that political influence could be brought to bear on prosecutorial decision.”^[75]

8.40 This Director of Public Prosecutions model in Ireland differs significantly from the English and Welsh model of a Director of Public Prosecutions in that the Attorney General in Ireland is not given any function of general superintendence over the work of the Director. The 1974 Act specifically provides that the Director should be independent in the performance of their functions. It is therefore unlawful to communicate with the Director in order to influence the decision of whether to initiate or withdraw criminal proceedings, and decisions about sentence review on the grounds of undue leniency are also solely a matter for the Director.

8.41 The Director is accountable to Parliament through the Public Accounts Committee. The Director is appointed by the Government on the advice of a special committee and can be removed by the Government following a report from a special committee.

8.42 The duties of the Director are to: enforce the criminal law in the courts on behalf of the People of Ireland; direct and supervise public prosecutions on indictment (formal written accusations) in the courts; give general direction and advice to An Garda Síochána (the Irish police force) in relation to summary cases (less serious cases which can be heard in the District Court) and give specific direction to An Garda Síochána in cases where requested. Section 3 of the Prosecution of Offences Act 1974 allows for the Director to perform all functions previously performed by the Attorney General in relation to criminal matters.

Jersey

8.43 The British Crown Dependency of Jersey has two Law Officers, HM Attorney General and HM Solicitor General. The Attorney General and the Solicitor General (‘the Law Officers’) are appointed by the Crown. They are Members of the States (the legislature for Jersey) by virtue of their office and are legal advisers to the Assembly. They have a right to speak but not to vote. They do not generally speak on political matters other than those in which they have a direct official interest. Any Member may request a Law Officer to give legal advice on a matter before the Assembly.

8.44 The Law Officers’ Department assist the Law Officers in their functions. Their main functions are summarised below.

8.45 One main function is providing legal advice to the Crown, the States and others. The department advises the Crown, ministers and departments on matters of law; advises States members, Parish Constables, the Dean of Jersey and the Receiver General on matters of law arising out of their public duties; prepares reports for the Privy Council on new legislation submitted to it by the States and liaises with the Ministry of Justice on UK legislation which may be extended to the Island; and examines international agreements and European Union legislation to determine their relevance to Jersey.

8.46 Another main function is in providing a public prosecution service for the Island. The Department conducts criminal prosecutions in the Royal Court, advises and directs States and Honorary police in criminal prosecutions, appears at the Court of Appeal and Royal Court in criminal appeals and bail and probation reviews, considers information from other departments and, where appropriate, institutes proceedings on statutory infractions before the Courts, institutes proceedings where appropriate against States and Honorary police following investigation of complaints, and authorises warrants for arrest of persons wanted in the Island

8.47 The Department also protects the interests of the Crown and States in civil proceedings.

Guernsey

8.48 Guernsey is a British Crown Dependency. The legislature, the States of Deliberation, include two non-voting members being the Law Officers of the Crown, the Procureur (Attorney General) and the Comptroller (Solicitor General), both appointed by the monarch.

8.49 The Law Officers of the Crown provide a range of legal services covering issues that would be dealt with by both central and local government in larger jurisdictions, primarily for: the Crown, the States of Guernsey, the States of Alderney, the Chief Pleas of Sark, and other public service clients.

8.50 The two Law Officers, HM Procureur (HM Attorney General) and HM Comptroller (HM Solicitor General), are supported by five distinct teams and are responsible for: Criminal Prosecution, Civil Litigation, Commercial Law, Legislative Drafting & Advisory, Civil Advisory & Legislation.

8.51 HM Procureur holds the office of HM Receiver General (functions of collecting Crown revenue and administration of Crown property) and HM Comptroller holds the office of HM Deputy Receiver General.

Cyprus

8.52 The Attorney-General of the Republic of Cyprus is appointed by the President. They are the Head of the Law Office of the Republic, which is an independent office and is not under any Ministry.

8.53 The Attorney-General and the Deputy Attorney-General of the Republic are members of the permanent legal service of the Republic. They hold office under the same terms and conditions as a Judge of the Supreme Court and are not removed from office except on like grounds and in a like manner as a Judge of the Supreme Court. They have the right of audience in, and take precedence over any other persons appearing before, any Court.

8.54 The Attorney-General, assisted by the Deputy Attorney-General, is the legal adviser to the President and of the Council of Ministers, and to Ministers, and exercises such other powers and performs such other functions and duties as are conferred or imposed by the constitution or by law.

8.55 The Attorney-General has power, exercisable at their discretion in the public interest, to institute, conduct, take over and continue or discontinue any proceedings for an offence against any person in the Republic. Such power may be exercised in person or by officers subordinate to them acting under and in accordance with their instructions.

8.56 The President, on the unanimous recommendation of the Attorney-General and the Deputy Attorney-General, remits, suspends or commutes any sentence passed by a Court in the Republic.

8.57 All actions filed by the Republic against any person, unless otherwise provided by any law, are filed in the name of the Attorney-General, and actions filed by any person against the Republic, unless otherwise provided by any law, are filed against the Attorney-General as defendant, who represents the Republic before the Court.

Mauritius

8.58 The Attorney General is the principal legal adviser to the Government of Mauritius. The Attorney General must be a citizen of the state and a qualified candidate for legislative election. Where the holder of the office is not an elected member of the National Assembly, the only restriction is that they are not entitled to vote in the Assembly.

8.59 The Attorney General’s Office comprises the Solicitor General, the legislative drafting office, and the Chief State Attorney. The Solicitor General is the highest public officer of the Attorney General's Office. They advise the State and the various departments; and handle major litigation in which the State, its agencies, or officers, is a party. This includes defending the State in the different courts as well as filing suits on behalf of the State. On legislative drafting, the Parliamentary Counsel, assisted by a number of senior officers, prepares Bills and reviews existing legislations. The Chief State Attorney, assisted by a team of Attorneys, acts as the main Attorney to the government.

8.60 The Office of the Director of Public Prosecutions (ODPP) was first established by the Constitution in 1964 whereby the power of the then existing Procureur to prosecute crime was vested in the newly created post of Director of Public Prosecutions.

8.61 Initially the ODPP operated within the Attorney General's Office. That changed following the recommendations made by Lord Mackay of Clashfern, Chairman of the Legal Reform Commission set up to review aspects of the justice system in Mauritius. At the outset, the Mackay report recommended that the ODPP should operate as a separate department managed by the Director of Public Prosecutions and with no responsibilities except those relating to prosecution. However following an updated Report by Lord Mackay, and in light of a judgment of the Judicial Committee of the Privy Council holding that decisions of the DPP in Mauritius were open to challenge and review in the courts,^[76] the ODPP was established as a separate office distinct from the Attorney General's Office with its own budget and establishment.

8.62 The ODPP is a public and independent office which prosecutes criminal cases referred to the office after investigation by the police and other investigative bodies. All prosecution decisions are made independently of the police and the government.

8.63 The powers of the Director of Public Prosecutions are provided for at Section 72 of the Constitution: the Director of Public Prosecutions shall have power in any case in which they consider it desirable so to do to (a) institute and undertake criminal proceedings before any Court of law (not being a Court established by a disciplinary law); (b) take over and continue any such criminal proceedings that may have been instituted by any other person or authority; and (c) discontinue at any stage before judgment is delivered any such criminal proceedings instituted or undertaken by them or by other person or authority.

Singapore

8.64 In Singapore the Attorney General is appointed by the President, on the advice of the Prime Minister, under Article 35 of the Constitution. The Attorney General is not a member of Parliament.

8.65 The Attorney General has a number of roles: they are the legal adviser to Government; the public prosecutor; the state’s legal representative in courts; and they are responsible for drafting legislation. As the public prosecutor, the Attorney General has power to institute, conduct or discontinue proceedings for any offence. The Attorney General is independent in this role and not subject to the control of the Government.

United States

8.66 The United States Attorney General is the head of the United States Department of Justice and the chief law enforcement officer of the federal government of the United States. The Attorney General serves as the principal adviser to the President of United States on legal matters. The US Attorney General reports directly to the President of the United States and is a member of the President's cabinet. The office holder is nominated by the President of the United States, then appointed with the advice and consent of the United States Senate. The Attorney General is supported by the Office of the Attorney General, which includes executive staff and several deputies.

8.67 The United States Department of Justice is the Federal Executive Department of the United States Government responsible for the enforcement of federal law and administration of justice in the United States. The Department comprises federal law enforcement agencies, including the Federal Bureau of Investigation, the US Marshall Service, the Bureau of Alcohol, Tobacco, Firearms and Explosives. the Drug Enforcement Administration, and the Federal Bureau of Prisons. The Department includes US attorney offices for each of the US federal judicial districts. The Department is also responsible for reviewing the conduct of local law enforcement.

8.68 The Solicitor General assists the Attorney General in their duties. The main functions of the Office of the Solicitor General are to represent the Government in the Supreme Court, appeal courts and to intervene in other courts to defend the constitutionality of an Act of Congress. They also assist the Attorney General in the development of Department programs and policy.

8.69 Most criminal matters in the United States are handled in State judicial systems. In most States the District Attorney is the chief prosecutor for a specific geographical area such as a county or district. In some cases the State Attorney General may also prosecute criminal cases, especially those that involve complex issues or have state-wide implications. Generally, the prosecutor represents the people of the jurisdiction, and in many States their authority stems from the State constitution. In many cases he District Attorney is elected and has an allegiance to a political party. In some cases the District Attorney is appointed.

Australia

8.70 The Commonwealth of Australia has an Attorney General and a Solicitor General. Australian Law Officers were initially based on the Ministerial roles of Law Officers in England and Wales.^[77] Now the Attorney General performs a political, senior Ministerial role, whereas the Solicitor General has a non-political, statutory role.

8,71 The Attorney General is the chief Law Officer and heads up the Attorney General’s department. The Attorney General is a minister and has responsibility for, amongst other things, law and justice and also aspects of the administration of criminal justice.^[78]

8.72 The functions of the Solicitor General are set out in the Law Officers Act 1964. The role of the Solicitor General is to provide non-political legal counsel. They specialise in constitutional and public law advice and will represent the Commonwealth in important litigation. They are appointed for a term not exceeding seven years but are eligible for re-appointment.^[79] To be eligible for appointment, they must have been a barrister or solicitor of the High Court or of the Supreme Court of a State for at least five years.

8.73 The Solicitor General at one time was responsible for Commonwealth criminal law prosecutions. This is now the responsibility of the Director of Public Prosecutions. The Office of the Commonwealth Director of Public Prosecutions (CDPP) was established under the Director of Public Prosecutions Act 1983 Act and is responsible for Commonwealth criminal law prosecutions. It is overseen by a Director, who is appointed for a term of up to seven years. Whilst the CDPP is part of the Attorney General’s portfolio, it operates independently of the Attorney General. However, under section 8 of the 1983 Act the Attorney General has the power to issue guidelines or directions to the Director of CDPP. There should be prior consultation with the Director on these guidelines before they are made, and they should be tabled in Parliament.^[80] These could be general guidelines or directions regarding the circumstances in which the Director should institute or carry out prosecutions for offences, or could be given in relation to particular cases.

8.74 The States and Territories of Australia also have their own Directors of Public Prosecutions.

New Zealand

8.75 New Zealand has an Attorney-General and a Solicitor-General.

8.76 The Attorney-General is a ministerial position and has two main roles. The first role is that of the senior Law Officer to the Crown and to oversee the Government’s administration of law. This is a function that exercised in conjunction with the Solicitor-General.^[81] The second role is that of a Minister of the Crown with responsibility for the Crown Law Office, the Serious Fraud Office, and the Parliamentary Counsel Office. The Attorney-General’s role combines the obligation to act on some matters independently, free of political considerations, with on the other hand, the political partisanship that is otherwise properly associated with other ministerial offices.

8.77 The Solicitor-General is a non-political Law Officer, and is an official of the Government and also the Chief Executive of the Crown Law Office. They provide advice to the Government and appears on their behalf in litigation. They also perform certain prosecution functions. This includes the prosecution of criminal jury trials and Crown representation in appeals against conviction and sentences.^[82] The Solicitor-General can exercise almost all of the statutory functions that the Attorney-General can. Being a non-political office, they are usually responsible for the functions that should be undertaken independently of the political process such as the prosecution functions.^[83]

Canada

8.78 The office of Attorney General of Canada and the Minister of Justice in the federal government is held by the one person. This model was chosen at Confederation. It is said to provide benefits by giving one person responsibility for key elements of the justice system, creating important synergies.

8.79 As Minister for Justice, they are responsible for providing advice to the Cabinet and for the development of justice policy.

8.80 The Attorney General is responsible for defending the rule of law by ensuring that all government action is in accordance with the constitution, including the Charter of Rights and Freedoms. As Attorney General, they have prosecutorial powers and duties and have the ultimate authority to prosecute some offences.^[84] When carrying out prosecutorial duties they are under an obligation to act independently of partisan concerns. However, most of their prosecution functions have been assigned to the Public Prosecution Service of Canada, established in 2006. The Office of Director of Public Prosecutions (ODPP) was created by the Director of Public Prosecutions Act.^[85] The Attorney General delegates authority to conduct federal prosecutions to the Director of Public Prosecutions, and has oversight of the federal prosecution function. The Attorney General also is responsible for conducting civil litigation.

8.81 There has been controversy in Canada with public concern about the ability of the system to protect against possible interference with prosecutorial functions, and about the dual role of the Minister of Justice and Attorney General of Canada. A review of the Roles of the Minister of Justice and Attorney General of Canada was carried out by the Hon A. Anne McLellan, with a Report in 2019.^[86]

8.82 It was stated in the Report that there is no system for managing prosecutorial decisions that absolutely protects against the possibility of partisan interference, while providing for public accountability. It was noted that different jurisdictions have chosen different approaches to organise the functions of Attorneys General and Ministers of Justice, these reflecting the history, politics, and legal cultures of these jurisdictions; and that it is not advisable to simply transplant one model into a different context.

8.83 The Report did not recommend structural change to protect prosecutorial independence and promote confidence in the justice system. The view was taken that the Director of Public Prosecutions Act provides strong structural protections against political interference; noting that the personal integrity of the Attorney General is essential, indeed probably the most important element in a system that protects the rule of law.

8.84 The conclusion in the Report is that any concerns about the joined roles can be addressed through a comprehensive protocol on ministerial consultations in specific prosecutions in the public interest; an education programme for ministers and others on the role of the Attorney General and related issues; a new oath for the office of Minister of Justice and Attorney General which recognises the unique role of the Attorney General, and changes to the federal prosecutors manual and the guide for Cabinet Ministers on their roles and responsibilities. Detailed recommendations were made.

France

8.85 France and Germany (see below) are examples of civil law jurisdictions, in which the nature of the office of a Law Officer may be quite different from those in common law jurisdictions due to the different historical context.

8.86 In France, the Council of State (Conseil d’État) advises the Government of France on the preparation of bills, ordinances and certain decrees. The Conseil d’État ensures that the French administration operates in compliance with the law. It is therefore one of the principal guarantors of the rule of law in the country.^[87]

8.87 The Council of State has a very specific composition compared to other jurisdictions. It is made up of state advisors, who are civil servants with a specific status guaranteeing their independence. The Council of State is presided over by the Prime Minister; the vice-President is the Garde des Sceaux. The oldest function of the Council of State is its role of advisor to the government. The Council examines and gives its opinion on bills and projects of decrees and by-laws.

8.88 The “ministère public”, in France, is the office of public prosecutor, with the responsibility for prosecuting criminal cases and representing the interests of society in civil litigation. The ministère public is represented by agents (procureurs) in most of the courts of France, except police courts.

8.89 Public prosecutors are under the authority of the Minister of Justice. The Minister of Justice conducts the policy of prosecution determined by the Government. They ensure that the application of such a policy in the territory of the Republic is coherent by addressing general instructions on prosecution to the general prosecutors. There is a hierarchy within the prosecution service: the Procureurs de la République (first level) are under the authority of the Procureurs Généraux (court of appeal) who can give them instructions regarding the general functioning of their offices and the policy of their jurisdiction and also the decisions to take in a particular case, if deemed necessary. The Procureurs Généraux report directly to the Minister of Justice.

Germany

8.90 Due to the federal structure of Germany, the public prosecution service is organised on federal and state levels. The Office of the German Federal Public Prosecutor (Generalbundesanwaltschaft, GBA) is Germany’s highest prosecuting authority. The GBA is responsible for prosecutions in serious cases relating to crimes against international law and crimes concerning state security”.^[88] The chief prosecutor is the Public Prosecutor General at the Federal Court of Justice. The Federal Public Prosecutor General, federal prosecutors, senior prosecutors and prosecutors of the Federal Court of Justice are civil servants appointed for life. However, the Federal Public Prosecutor General has a particular position: as a political civil servant, they can be sent into temporary retirement by the Federal Minister of Justice at any time and without further justification.

8.91 As the prosecutor of the Federal Government, the Office of the Federal Prosecutor organisationally belongs to the executive branch. It is subject to the supervision of the Federal Ministry of Justice and Consumer Protection. The Federal Minister of Justice is thus politically responsible to the Federal Government and parliament for the activities of the Office of the Federal Prosecutor.”^[89] As the prosecutor of the Federal Government, the Office of the Federal Prosecutor has no authority to instruct the prosecutors of the individual federal states. The prosecutors of the federal states are answerable to the Prosecutors General of the federal states and the State Ministers of Justice. However, under certain statutory provisions, the Office of the Federal Prosecutor can cede proceedings from its field of responsibility to the state prosecutors’ offices or seize jurisdiction of a case from them.

Malaysia

8.92 The Attorney General of Malaysia is the principal legal adviser to the government, and also holds the position of Public Prosecutor, the highest ranking public prosecutor. The role and functions of the Attorney General are set out in Article 145 of the Federal Constitution.

8.93 University College London Faculty of Laws hosted a roundtable discussion of legal experts on 10 March 2025 to assist the Malaysian Government in preparing an empirical study on the separation of the roles of Attorney General and Public Prosecutor. ^[90]

Northern Europe: the Chancellor of Justice model of a role in relation to the lawfulness of government action and the rule of law

8.94 There is a model whereby certain northern European countries recognise the importance of upholding the rule of law by having an office within government responsible for that role known as the Chancellor of Justice.

8.95 The role of a Chancellor of Justice may cover some functions undertaken by Law Officers in other jurisdictions. As well as upholding the rule of law, the Chancellor may be responsible for some of the following functions: the role of the Government's counsellor in legal matters; the State's representative in trials and other legal disputes; receiving complaints and claims for damages made against the State and deciding on financial compensation for such damages; acting as ombudsman in the supervision of authorities and civil servants, and taking action in cases of abuse; ensuring that the limits of the freedom of the press and other media are not transgressed and acting as the only public prosecutor in cases regarding offences against the freedom of the press and other media; acting as the guardian for the protection of privacy.

Estonia

8.96 In Estonia, the office of Chancellor of Justice provides independent supervision of the basic principles of the Constitution of Estonia and protection of individual rights. The office holder seeks to ensure that authorities fulfil the obligations deriving from the principles of the rule of law and protection of human and social rights, human dignity, freedom, equality and democracy.

8.97 The Chancellor of Justice may verify that laws, regulations and other legislation of general application are in conformity with the Constitution and other laws of general application. The Chancellor of Justice may do so either on an application to them or on their own initiative.

8.98 A candidate for the office is proposed by the President and appointed by the Parliament for a term of 7 years.

Finland

8.99 The Chancellor of Justice of Finland serves as the supreme guardian of the law. The Chancellor of Justice oversees the legality of the activities of the Government and the President of the Republic. The Chancellor of Justice also oversees that the authorities comply with the law and fulfil their duties. Citizens can lodge complaints with the Chancellor of Justice about an authority’s activities that they suspect to be illegal. The Chancellor may also start an investigation on their own initiative.

8.100 The Chancellor attends cabinet meetings as a non-voting member to ensure that legal procedures and regulations are followed. The Chancellor has wide-ranging powers of oversight, investigation and prosecution.

8.101 The Chancellor (and Deputy) is appointed by the President of Finland. The Chancellor is appointed for life but is required to retire at the age of 68.

Sweden

9.102 In Sweden the Chancellor of Justice is appointed by the Government and serves at its pleasure, though the appointment is not part of the patronage system. The office was originally created through a royal decree in 1713.

8.103 The main tasks of the Chancellor are: the supervision of public authorities (the purpose being to verify compliance with laws and regulations; the supervision is primarily focussed on detecting systematic errors in public activities); the voluntary settlement of certain claims for damages against the state; the sole prosecutor in press and freedom of expression offences; supervision of the disciplinary activities of lawyers; protection of privacy; the supervision of legal aid; agent of the State; acting as the state’s representative in certain actions concerning state law, primarily damages cases; and adviser to Government. The Chancellor sometimes assists the Government with advice and investigations on legal matters.

Investigation of sudden and unexpected deaths

8.104 A brief outline is given below of the system of investigation of sudden and unexpected deaths in various jurisdictions.

8.105 In France the investigation of sudden or unexplained deaths, including the instruction of post mortem, is usually ordered by the public prosecutor (the “procureur”).^[91] The public prosecutor’s office opens an investigation “in search of the causes of death” (En recherche des causes de la mort). Once an investigation is opened, the body of the deceased is placed under the responsibility of the public prosecutor and the gendarmerie or the police.^[92] Post-mortems are carried out by forensic doctors appointed by the court.^[93]

8.106 The public prosecutor in Poland takes the decision of whether to instruct a forensic post mortem in respect of a sudden or unexpected death.^[94] If it is suspected that death has been caused by criminality, the Polish Code of Criminal Procedure^[95] requires an external examination of the body at the place where it was discovered and a forensic post mortem to be performed. A suspicion that the death was caused by criminality obliges the public prosecutor to instruct the examination and post mortem. The decision of whether to instruct such an investigation is taken solely by the state prosecutor conducting the investigation and cannot be appealed.

8.107 In Finland, the National Institute for Health and Welfare is the competent authority in charge of forensic medicine.^[96] A police inquiry must be conducted to determine the cause of death whenever death is not known to be due to illness, or if the deceased has not been treated by a physician during last illness; when death is suspected to have been caused by a criminal offence, accident, poisoning, suicide, occupational disease or medical treatment; and when death is otherwise unexpected. If the police decide that a forensic autopsy must be carried out, the Finnish authorities do not require permission from the next of kin.

Observations

8.108 It will be noted that it is not unusual for a mix of functions relating to the justice system to be allocated to a Law Officer, especially in a small or relatively small jurisdiction. There are small jurisdictions that have dual principal roles for Law Officers, i.e. the principal roles of legal adviser to government and the prosecutor of crime. There are too jurisdictions which have conferred Ministerial functions on a Law Officer.

8,109 A number of jurisdictions including small ones had such dual principal roles for Law Officers, and separated them out, establishing an independent office for the prosecution of crime often headed by a Director of Public Prosecutions (DPP). For example, Northern Ireland, Ireland, Malta and Mauritius. The arrangements in doing so differ amongst such jurisdictions.

8.110 The main issues that arise across jurisdictions are:

(a) the independence of the head of prosecutions;

(b) the system for accountability of the head of prosecutions;

(c) where there is a DPP or an equivalent office, the relationship between the DPP and the Attorney General or lead Minister.

8.111 Where an independent office for prosecutions is created, provision has varied between jurisdictions as to the relationship between the DPP and the Attorney General, and the accountability of the former. There is provision for a duty of reporting between these office-holders in certain cases; provision for a relationship of superintendence by the Attorney General in other cases, and provision simply for the independence of the DPP in another, although there may be provision for consultation with the Attorney General.

8.112 As regards the nature of the relationship between a Law Officer and the executive branch of Government, there is a broad spectrum of possibilities. At one end, the non-elected, non-political, public servant model for the office of Attorney General, a model adopted by some Commonwealth countries. At the other end, the Attorney General as senior Law Officer may be a member of Cabinet, common in other Commonwealth jurisdictions. In between, there are a variety of semi-independent models whereby the Attorney General remains a political appointment but has a more or less distant relationship to Cabinet and the Prime Minister.^[97]