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CLAJ Role of the Attorney General Report PP 2021/0107 CONSTITUTIONAL AND LEGAL AFFAIRS AND JUSTICE COMMITTEE THIRD REPORT FOR THE SESSION 2020-21 Role of the Attorney General CONSTITUTIONAL AND LEGAL AFFAIRS AND JUSTICE COMMITTEE SECOND REPORT FOR THE SESSION 2020-21 Role of the Attorney General There shall be a Committee on Justice, Constitutional and Legal Affairs which shall be a Standing Committees of the Court. It shall be entitled to take evidence from witnesses and to report on matters as they affect the Island relating to the administration of justice, legal services, the work of the Attorney General and constitutional issues. It may also hold joint sittings with other Committees for deliberative purposes or to take evidence. The Committee shall have: a) a Chairman elected by Tynwald, b) two other Members. Members of Tynwald shall not be eligible for membership of the Committee, if, for the time being, they hold any of the following offices: President of Tynwald, member of the Council of Ministers, Attorney General, member of the Treasury Department referred to in section 1(2)(b) of the Government Departments Act 1987. The Committee shall be authorised to require the attendance of Ministers for the purpose of assisting the Committee. The powers, privileges and immunities relating to the work of a committee of Tynwald include those conferred by the Tynwald Proceedings Act 1876, the Privileges of Tynwald (Publications) Act 1973, the Tynwald Proceedings Act 1984, and by the Standing Orders of Tynwald Court. Committee Membership Mrs J P Poole-Wilson MLC (Chairman) Mr L L Hooper MHK (Ramsey) Mr C R Robertshaw MHK (Douglas East) Copies of this Report may be obtained from the Tynwald Library, Legislative Buildings, Finch Road, Douglas, IM1 3PW (Tel: 01624 685520) or may be consulted at www.tynwald.org.im All correspondence with regard to this Report should be addressed to the Clerk of Tynwald, Legislative Buildings, Finch Road, Douglas, Isle of Man, IM1 3PW. Table of Contents I. SUMMARY .................................................................................................... 1 II. INTRODUCTION............................................................................................. 3 THE COMMITTEE AND THE INQUIRY 3 III. BACKGROUND AND CURRENT DUTIES OF THE ATTORNEY GENERAL ............... 5 BACKGROUND 4 CURRENT DUTIES 5 IV. STRUCTURE OF THE ROLE .............................................................................. 8 RESILIENCE 8 CROWN OFFICER STATUS 9 V. CONFLICTING DUTIES....................................................................................11 PROSECUTIONS 11 ADVISOR TO THE GOVERNMENT 14 MEMBERSHIP OF THE LEGISLATURE 18 Legislative Council.........................................................................................................................18 Tynwald Court...............................................................................................................................18 ATTORNEY GENERAL’S PRIVILEGE 24 VI. CONCLUDING REMARKS ...............................................................................27 VII. CONSOLIDATED LIST OF CONCLUSIONS AND RECOMMENDATIONS...............29 ANNEX: FURTHER READING..................................................................................31 ORAL EVIDENCE ...................................................................................................35 11TH NOVEMBER 2019: EVIDENCE OF MR JOHN QUINN ESQ QC, HM ATTORNEY GENERAL 37 9TH DECEMBER 2019: EVIDENCE OF MR WILL GREENHOW, CHIEF SECRETARY 67 22ND SEPTEMBER 2020: EVIDENCE OF MR JOHN QUINN ESQ QC, HM ATTORNEY GENERAL 89 WRITTEN EVIDENCE ...........................................................................................109 APPENDIX 1: 2012 STEPHEN WOOLER REVIEW OF HM ATTORNEY GENERAL’S CHAMBERS (ISLE OF MAN): EXECUTIVE SUMMARY 111 APPENDIX 2: 16TH JUNE 2020 – TYNWALD WRITTEN ANSWER BY HM ATTORNEY GENERAL: UPDATE ON THE IMPLEMENTATION OF WOOLER'S RECOMMENDATIONS 127 APPENDIX 3: 2005 REPORT BY THE COUNCIL OF MINISTERS ON THE APPOINTMENT OF HM ATTORNEY GENERAL 135 APPENDIX 4: 27TH OCTOBER 2020 – DRAFT DESCRIPTION OF THE ROLE OF HM ATTORNEY GENERAL BY CURRENT INCUMBENT MR JOHN QUINN ESQ QC 155 APPENDIX 5: 27TH OCTOBER 2020 – UPDATED ORGANOGRAM OF THE STRUCTURE WITHIN HM ATTORNEY GENERAL'S CHAMBERS 159 APPENDIX 6: 8TH OCTOBER 2020 – WRITTEN SUBMISSION FURTHER TO ORAL EVIDENCE HEARING OF MR WILL GREENHOW, CHIEF SECRETARY 163 APPENDIX 7: 25TH JUNE 2020 – LETTER FROM CHIEF MINISTER TO MEMBERS OF TYNWALD ON ATTORNEY GENERAL'S PRIVILEGE 167 APPENDIX 8: 7TH DECEMBER 2018 – ARTICLE FROM THE LAW SOCIETY GAZETTE: ADVICE FROM THE ATTORNEY GENERAL DOES NOT ATTRACT PRIVILEGE 171 To: The Hon Stephen C Rodan OBE MLC, President of Tynwald, and the Hon Council and Keys in Tynwald assembled CONSTITUTIONAL AND LEGAL AFFAIRS AND JUSTICE COMMITTEE THIRD REPORT FOR THE SESSION 2020-21 ROLE OF THE ATTORNEY I. SUMMARY 1. The duties encompassed within the single role of the Attorney General are not compatible with modern expectations and standards for the separation of powers. At present, the Attorney General’s core functions include acting as chief legal advisor to the Government, as legal advisor to Members of Tynwald, as guardian of the rule of law and the public interest, and as prosecutor in the Courts of General Gaol Delivery and Summary Jurisdiction. It is evident that these duties give rise to inherent conflicts when performed by one single person. 2. The structure of the role of the Attorney General must be changed, not only in order to ensure that the three pillars of the constitution are sufficiently separate, but also to ensure that those who depend upon the advice of the Attorney General can have confidence in the service they are receiving. 3. It is imperative that prosecutorial decisions are entirely independent of the Government and potential political motivations. An Attorney General who is privy to the policy-making decisions and deliberations of the Council of Ministers is by nature incapable of guaranteeing that a decision to prosecute has not been 1 influenced, either consciously or subconsciously, by knowledge of political directions. 4. Members of Tynwald should have their own legal advisor, who has no duties towards the executive and who will be able to offer comprehensive advice without any perception of conflict or executive bias. There should be a clear separation between the advisor to the Council of Ministers and the advisor to Tynwald. 5. The Island’s legal and political landscape has seen immense change since the 19th century; yet the structure of the role of the Attorney General has not. It is no longer realistic to expect an Attorney General to have active knowledge of all aspects of the law and to be capable of offering instant advice on legal matters. The international standing of the Island has grown, with increasing requirements to meet additional legal and regulatory standards. 6. We removed the judiciary from Tynwald because we recognised the importance of separation. We must continue to make such changes to protect the fundamental principles of our constitution, as well as to protect and promote the reputation of the Isle of Man as a modern, well-regulated and secure jurisdiction which prioritises fair justice and safeguards the rule of law. 7. We must acknowledge the problematic conflicts in the role of the Attorney General and recognise that a dialogue needs to be established with the Ministry of Justice in order to begin a process of modernising our system in furtherance of the protection of the rule of law and the principles of separation. 2 II. INTRODUCTION The Committee and the Inquiry 8. Following the establishment of the Committee in October 2017, we began holding informal meetings with a number of key stakeholders in order to develop a broader understanding of the context of some of the key constitutional, legal and justice matters in need of review in the Isle of Man. 9. Since then we have reported on, and made recommendations in relation to, matters such as the need for a Minister with responsibility for justice and the need for a significant review of the provision and regulation of legal services. In July 2019, having long been acutely aware of the perception of conflicts of interest within the role of the Attorney General, as well as the potential for true conflicts to arise, we made the decision to make this the focus of our next substantial inquiry. 10. It is essential to note from the outset that our decision to undertake this inquiry was based solely on our concerns in relation to the overarching structure of the role of the Attorney General. This report is under no circumstances to be interpreted as a criticism or reflection of the conduct and performance of the current incumbent, nor of any individual post holders before him. We are grateful to him for his assistance in discussing the ideas in this report. 11. Evidence was heard in public on three occasions – once from Chief Secretary Will Greenhow and twice from the Attorney General. These oral evidence sessions were supplemented by a number of written submissions which are appended to this report. 12. In order to gain a deeper understanding of the structures and operation of the Attorney General’s Chambers, we considered the findings of Stephen Wooler’s final report on his review of H.M. Attorney General’s Chambers. Wooler was commissioned in 2012 by the Acting Head of the Chambers, at the request of the Chief Minister, to conduct a review with the following terms of reference: To examine the factors affecting
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