Column

Separating the Offices of the Attorney General and Minister of Justice

The time has come to begin seriously considering whether to separate the long-fused offices of Attorney General and Minister of Justice. The Attorney General is responsible for providing legal advice to the executive branch of government and for representing the government in all legal proceedings. In certain matters, the Attorney General is supposed to act completely independently in the public interest without reference to partisan politics. The Attorney General is known as the “defender of the Rule of Law” and indeed, under federal and provincial legislation, the AG is charged with seeing “that the administration of public affairs is in accordance with the law.” Conversely, the Minister of Justice, as the name suggests, is the Minister responsible for the Justice portfolio, developing policy and drafting legislation for this area.

All but one Canadian jurisdiction fuse the two different responsibilities into a single portfolio “Minister of Justice and Attorney General”. Some provinces have dropped one of the titles (In Ontario, she is simply the Attorney General; in Alberta, Prince Edward Island, and Nunavut, Northwest Territories, and the Yukon, the Minister of Justice). Only New Brunswick seems to have separated the Attorney General from the Minister of Justice. In some cases, the Minister of heads a “super Justice Ministry”, combining oversight of cops, Crowns and courts (which presents other challenges).

The fusion of the two roles has often been defended as ensuring that the Attorney General has a voice at the cabinet table in discussions of public policy but that seems to support the cabinet status of the Attorney General rather than its combination with another ministerial portfolio such as Justice. To quote the authoritative Fiddler on the Roof, it seems that the best explanation is tradition!

Thus, I was surprised to recently learn that in the United Kingdom, from whom we inherited the office of the Attorney General, the Attorney General and the Minister of Justice (Lord Chancellor and Secretary of State for Justice) are two separate positions. The Minister of Justice is a member of Cabinet while the Attorney General is not; although the latter does attend cabinet. The British position would seem to undercut our Canadian arguments about the efficacy of the fusion of the two offices.

In Israel, the division is even more profound. The Minister of Justice is a member of cabinet while the Attorney General is an independent, non-partisan lawyer whose legal advice is binding on the government.

A number of other factors have led me to raise this issue.

First, as I have previously written, the decline of lawyers in politics has led to it becoming increasingly common to appoint a non-lawyer as Attorney General and Minister of Justice. While it is constitutionally permissible, it is highly problematic to have a non-lawyer serve as the chief dispenser of legal advice to the executive branch of government.

Conversely, there is no more a problem with a non-lawyer serving as Minister of Justice than there is in having a non-doctor as Minister of Health or a non-teacher as Minister of Education. This is because this person is responsible for the development and implementation of government policy in their area, not for providing medical or teaching services.

Second, the recent attack by the Harper Government on the Supreme Court, specifically on the integrity of Chief Justice McLachlin, has also given me reason to pause. This is because Minister of Justice and Attorney General of Canada Peter MacKay not only failed to defend the Supreme Court, he actively participated in the drive by smearing of the Chief Justice of Canada. This episode has stained the office of the Attorney General of Canada and is an embarrassment for the highly professional federal Department of Justice. I doubt that history will look kindly on the actions of the Attorney General/Minister of Justice in this instance.

Finally, some jurisdictions have already hived off the chief prosecutorial functions in several jurisdictions including the federal, British Columbia, Nova Scotia and Quebec. Maybe the time has come to start thinking about doing the same for the responsibilities of the Attorney General.

I know one thing. I need to spend some of my sabbatical investigating New Brunswick and learning about how the separate responsibilities of the Attorney General and of the Minister of Justice work there.

Comments

  1. While the Lord Chancellor and Secretary of State for Justice are separate please note that there is on the Legal Services Board the Legal Services Consumer Panel consisting of lay persons approved by the Lord Chancellor. The Panel’s vision is “for a market where everyone can access high quality and affordable legal services that meet their needs:
    • A competitive legal services market where consumers are empowered and have easy access to high quality legal advice at a fair price;
    • All consumers have an equal access to legal services regardless of their personal circumstances;
    • Regulatory bodies have processes enabling them to take decisions which are in the consumer interest;
    • Consumers receive legal advice from a diverse and competent workforce;
    • Consumer complaints are resolved fairly, quickly and cost-effectively.

    The Panel has a remit to represent the interests of the many different consumers of legal services, including small businesses and charities. Within this we have committed one of our work strands to prioritising the needs of more vulnerable groups of consumers. The Panel has legal powers to publish its advice and the Legal Services Board has a legal duty to explain its reasons when it disagrees with the advice that we publish.”

    Although there is a “legal duty” to explain any disagreement with the Panel’s advice there is no obligation to follow the proffered advice. It’s yet to be determined the effectiveness of the Panel’s oversight.

  2. Why has that time come? Are there examples of problems arising in practice from the combination of the two offices, rather than considerations of theoretical neatness? Over time, ministerial responsibility for policing has usually been removed from the AG/Justice minister, and in a lot of provinces, prosecutions have been split off, as they should not be politically motivated or motivated by financial interests of the government.

    Why else would we put ourselves to the trouble of deciding where the line should be drawn? Is it suggested that Mr MacKay’s behaviour toward the Chief Justice would have been more acceptable if he had occupied the office either of Minister of Justice or of Attorney General for Canada, rather than both? I don’t understand why. The note suggests he harmed both offices, but it would be a lot of work to separate them just so an embarrassing minister would embarrass only one of them…

  3. The political (and legal) history of Canada is one of a relentless pursuit of the concentration of power.

    Recall that Maurice Duplessis was famously both Premier and A.G. when he went after Mr. Roncarelli. So presumably the PM could make himself also A.G. and Minister of Justice. Then he’d be able to advise himself about what is and isn’t legal, or constitutional.

  4. Mr. Duplessis died in 1959. Since then, I am not aware of any premier making him/herself AG or Minister of Justice as well (though it may have happened somewhere in the country in the past 55 years).

    In the interim, as noted above, most AG/Justice Ministers have separated themselves from responsibility over the police, as the conflict between being responsible for police, prosecutors and courts was fairly apparent. (The annual federal/provincial/territorial meetings of “ministers responsible for justice matters” bring all of those ministers, including those looking after police and corrections, to the same table, since they do have issues that overlap and benefit from coordination.)

    So I don’t think ‘relentless pursuit of the concentration of power’ applies to this discussion.

  5. John

    Ernest Manning as premier of Alberta was also the AG. Manning resigned in 1968. He took on both jobs because, as I understand it, he thought he was the most qualified. Manning was not a lawyer as you probably know.