Can’t live with them, can’t live without them. Erasmus’s complaint about women is surely echoed in the attitude of governments to the 500-year-old post of Attorney-General. Governments need an outstanding lawyer at the centre to ensure that their decisions are legally acceptable, and yet that closeness can lead to allegations of impropriety.
It is just possible, though, that Gordon Brown has found a solution. Last week, only five days after appointing Baroness Scotland of Asthal, QC, as the new Attorney-General, the Prime Minister announced that the post needs to change. A constitutional process will begin shortly.
What will the future hold? The current arrangement is unlikely to survive. As the Green Paper published on July 3 noted, there is an apparent conflict between the Attorney-General’s role as the Government’s chief legal adviser and her separate role as chief prosecutor and guardian of public interest. The Constitutional Affairs Committee, which has been looking at the role of the Attorney-General since the beginning of the year, has the same concern.
The solution that has been canvassed most widely involves the appointment of a general counsel to the Government, taking on the attorney’s role as the Government’s chief legal adviser, while responsibility for prosecutions would be wholly separated from government.
What will a new general counsel add that in-house government lawyers cannot provide themselves? The answer is not to do with quality. When Baroness Scotland succeeded Lord Goldsmith, QC, in the Prime Minister’s Cabinet reshuffle, she found that as well as inheriting the Attorney’s new modern offices in Victoria Street she also had some 15 of the ablest lawyers in Government to assist her, most of them on secondment from other departments. In fact, standards across the Government Legal Service are high. Its expertise in public and EU law is second to none, and it has a panel of first-class Treasury Counsel to draw upon where its own resources are not sufficient. Quality is therefore not an issue; rather, it is a question of perspective and influence.
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Mr Brown will appoint a general counsel whose views he trusts and who shares his party’s aims in Government. So will his successors. In this sense the job will be a political appointment. The advice of the general counsel will have to be of the best kind: straightforward and clear, logically unassailable, independent and never tailored to please. But, to ensure that the appointee is listened to when the most difficult and sensitive decisions have to be made, the party in government will also need to be confident that the general counsel is sympathetic, even if the advice is unwelcome. Individuals who are appointed to this job will need to establish their credibility both within government and externally.
What of the Attorney’s other role? The Labour Party has good reason to be sensitive about the independence of the prosecution process. The first Labour Government in 1924 fell because allegedly the Cabinet leant on Sir Patrick Hastings, the Attorney-General, to drop the prosecution of a Mr Campbell, the editor of the Worker’s Weekly, for inciting mutiny by calling on soldiers not to break strikes. The Government made the issue a matter of confidence but lost the subsequent vote in the House of Commons and the general election that followed. Ever since then, from the Rhodesia oil sanctions case to the present-day cash-for-peerages case, the role of the Attorney-General in prosecutions has attracted controversy.
It is already plain that such situations will not recur. Mr Brown has stated that the Government’s intention is to surrender or limit the power of the executive to direct prosecutors in individual cases. With immediate effect, while the proposed consultation takes place, the Attorney-General will not make key prosecution decisions unless the law or national security requires this. Lady Scotland, therefore, will play no part in the decisions on the cash-for-peerages case since her consent is not legally required for any of the charges under consideration.
But it is not so clear how the inheritor of the Attorney’s current functions in the criminal justice area will spend her time. She will continue to be in charge of the prosecuting agencies and will make decisions where she is legally required to do so. But a more clearly defined independent status may well result in sharply diminished influence within government. Lord Goldsmith’s success in helping to shape criminal justice policy and in winning substantial increases for his departments in the expenditure rounds was due in part to his personal credibility and partly because he was an insider influencing insiders.
If, in the future, Attorneys-General have less to do within government, this could give rise to a problem that would need to be approached with restraint. If they compensate by taking too active a role in the day-to-day work of their departments they could easily be perceived as interfering and they would not get the best out of the people that they superintend.
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The better course would be to imitate the late Lord Williams of Mostyn. He got through all his work as Attorney-General by mid-morning, so that he could get on with the rest of his life.
The author is the head of Kingsley Napley’s criminal and regulatory litigation department and was the Deputy Head (1999-2003) of the Attorney-General’s Office.