Wednesday, 17 June 2015

The Attorney General and Solicitor General: Some History

Buried in the"Review of the Role of the Crown Officers", 2010 is quite an interesting snippet about the history of the role of Review of the Attorney General and Solicitor General, and how it has changed over the years.

The first Attorney Generals mention go back to the 14th century, although the actual term used was "Procureur-Généraux du Roi"

1309 c. Guill des Mareys
1323 Johan de Dicton
1379 Pierre Erembert

The Attorney General and Solicitor General
References to the Law Officers can be traced back to at least the mid­14th centuryfrom which time records relating to the ‘King’s Attorney’ (or ‘King’s Procureur’)and the ‘King’s Advocate’ can be found. In time, the offices came to be known as Attorney General and Solicitor General. They were appointed by the Crown although, as with the Bailiff, it appears that for a time they were appointed by the Island’s Governor until the principle of appointment by the Crown was confirmed in 1615

As the early titles might suggest, the Law Officers were effectively the ‘King’s Men’ appointed to ‘plead the king’s pleas’. They were responsible for bringing cases to the Royal Court and thereby became responsible for prosecutions in the Island and undertaking criminal proceedings. They became members of the Royal Court, although they had no judicial function and no decision­making powers.

In order to be able to defend the interests of the Crown they did have the right of addressing the Court in undertaking their functions and moving conclusions on the various matters within their responsibility. The Law Officers had the sole right to bring prosecutions to the Court.

It seems probable that as members of the Royal Court the Law Officers became members of the States, in the same way as the Bailiff and Jurats came to consult the Connétables and the Rectors.

As with the Royal Court, however, the Law Officers had the right to address the States but not to take part in the decision­making, and so did not have the right to vote. Their right to speak was confirmed by an Order in Council of 1824 and provision to that effect has been included in various Laws of the States of Jersey over the last 60 years

Although members of the States, the Law Officers remained representatives of the Crown and were the Crown’s legal advisers. They therefore advised the Crown on legislation passed by the States and protected the Crown’s interests in the Assembly. There is some evidence that they did also provide legal advice to the States and that they also at times represented the public interest within the Assembly, but these were not their primary function. The Attorney General was expected to advise the Crown, in essence against the interests of the States.

With the establishment of the Petty Debts Court and the Magistrate’s Court the Law Officers lost some of their exclusive right to bring prosecutions, as cases in the Magistrate’s Court were presented by the Connétable or a Centenier of the relevant Parish. It was later confirmed, however, that this did not derogate from the Attorney General’s right to institute proceedings in the Royal Court and the Attorney General was able to direct a Centenier whether a case should be instituted or discontinued.

The Attorney General therefore came to have the direction of those members of the Honorary Police with responsibilities in the Magistrate’s Court. It is not clear, however, whether this led to his being styled the titular head of the Honorary Police and the origin of that position remains somewhat obscure.

During the first part of the 20th century, the Law Officers’ advisory role increased from merely advising the Crown to advising the States as well. The situation had arisen whereby negative reports could be given to the Crown, through the Lieutenant Governor, on legislation approved by the States, which necessitated the legislation being brought back to the States for further work.

The necessity for this was removed by an enactment of the States in 1930. The Law Officers became advisers to the States in the fullest sense, and from then on they were involved in providing legal advice at all stages of legislation, from the formulation of underlying policy to the debate in the States Assembly. Prior to that time, the States were able to engage the Law Officers, but would have been required to pay them a fee for any such work undertaken

With the establishment of ministerial government in 2005 and the abolition of the committee system, the Law Officers retained their advisory capacity, but advised both the executive and non ­executive branches of the Assembly, the Council of Ministers and Scrutiny Panels. Furthermore, some legislation passed in recent years has assigned a wide variety of specific responsibilities to the Attorney General.

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