Amidst all the fuss about the Attorney General and her housekeeper, her recent role in helping to dissuade Gordon Brown from reforming her office has gone unremarked.
In July 2007, the incoming Prime Minister indicated that he planned to detach the Attorney’s core responsibility as top legal adviser from day-to-day politics (“The role of Attorney General which combines legal and ministerial functions needs to change”, he said) effectively separating the job from party concerns and devotion to the government of the day. This proposal for independence was, however, dumped by way of timorous proposals merely to entrench the present position of the Attorney, laid out in the White Paper and draft Constitutional Renewal Bill which followed in 2008. Having sounded as though he wanted to make progress, Brown disappointed those of us who have long considered the legal/judicial role of the Attorney to be incompatible with that of a Minister inside the Government and attending Cabinet. Two House of Commons Select Committees have recommended separation, and I initiated a minority report by MPs and Peers within the Joint Committee which examined the Government’s 2008 proposals, reiterating the compelling case for change.
You will recall the extent to which the top lawyer in the Government marches to a party political tune has caused some major controversy in recent years. First, the then Attorney’s advice on the legality of the Iraq invasion, under international law, seemed to have been adjusted to meet Mr Blair’s requirements. Then, the clear case for prosecuting BAe for its dubious dealings with the Saudi rulers was aborted, on the grounds that it would cause diplomatic and trade difficulties for the UK government. The hazy, anomalous position of the Attorney also allowed allegations of political influence to fly around when the decision was taken not to prosecute in the case of “loans for peerages”. Finally, the Attorney recommended that Labour Peers who had been found by the Sunday Times to be engaging in what is politely called “paid advocacy”, could not be suspended from the House. Luckily, other legal advice was sought and their suspensions continued, but what an invidious position it is for the Government to rely on advice in such situations from a party loyalist. Justice, it is often said, must both be done, and seen to be done. In so many cases, the current role of the Attorney General undermines at least the latter aim.
Gordon Brown and Jack Straw were to be congratulated for their plan to clarify the role of the Attorney, but it so quickly faltered, as did many other suggestions of constitutional progress. Indeed, I worked with Democratic Audit to enumerate them all in a document earlier this year: Beating the Retreat. Why the timidity?
It seems Baroness Scotland has impressive persuasive powers. She apparently argued successfully to continue as a Minister, attending Cabinet, and to remain a party political figure. The country – and, contrary to their own instincts, the Government – would be far better served by an independent legal authority, responsible to Parliament and the nation as a whole, not just to the Prime Minister.
We may admire Baroness Scotland’s powerful advocacy, but should we now question her judgement?
Yes.
I don’t think we can question her judgment. She is a Politician, and she knows that her powerful position as it is now grants her the ability to manipulate the system to favour the outcomes her party requires, so her decision makes sense in that context.
While I agree with you that there ought to be an independent legal authority, not regulated by partisan politicians, I don’t think you can rely upon someone in a partisan political position to agree to the creation of such a post if it means reform of their own position and includes a loss of such sweeping powers they currently enjoy.
But then, there is a reason I like the House of Lords more than the Commons, as I said Recently on an earlier post, and that is that it lack such partisan political structures. While some Lords are clearly partisan themselves, the House is not on the whole subject to such political whims.
Which is also why the Reforms of the Lords to make them a Democratically elected house is one I do not like, as we will see the same sort of mess we see in the Commons, and same sort of Mess as with the attorney General.
The whole nature of politics in a Democratic Structure as we have now is to make sure ones party is befitted, and able to reshape the national culture according to its own political ideologies, so we shouldn’t be surprised that a Labour appointee would twist and turn the law on a stick in order to Justify Prime Minister Blair’s war in Iraq, or current Labour aspirations are suddenly found to be the most legal of options, and possibly even urgently needed, if the AG is a Labour appointee.
Judgement and honesty don’t seem to be the AG’s strong points really do they?
How can anyone who breaks/fails to understand her own laws continue as Attorney General?
Quite so, the separation of powers has never been a strong point of our constitution.
A governing party is usually not prepared to make changes that diminsh its power. The much vaunted “flexibility” of the constitution is one that only appears at times of great scandal when public pressure for change becomes irresistible.
If the public was only aware of what goes on behind the scenes in many areas of public life many more constitutional changes would result. Transparency is the key to a healthy democracy.
“…..but should we now question her judgement?”
No, sir, we must question her continued role as Attorney General. Unless a fake passport is found, the Attorney General has committed far more than a “technical breach” (whatever that may be) of the law.
I find it interesting that the examples given to illustrate the potential conflict between the two roles of the A-G are all from the present government.
My failing memory might be at fault, but I cannot recall a single suggestion of an Attorney-General appearing to succumb to political pressures prior to 1997.
The same points made now about the role of the Attorney-General were made previously about the role of the Lord Chancellor. In consequence, that ancient position has now been abolished in all but name. But can anyone point to a single occasion on which the theoretical conflict between the political and legal roles of a Lord Chancellor became an actual conflict?
There is far too much concentration on form rather than substance.
That Attorneys-General appear to have placed their political role above their legal role under the current government is no reason to abolish the position. It is, however, every reason to hold them to account so that their successors return to the values of their predecessors.
In the present controvery about the illegally working housekeeper, we should also remember the high legal skills acquired by Lady Scotland, which include arguing the best case for the client (or, I would assume, for self), as opposed to seeking out the actual truth.
These legal skills conflict gravely with the need for “The truth, the WHOLE truth, and nothing but the truth”, which us poor deluded lay people expect.
Alan Douglas
In times when Parliamentarians were “honourable” the vesting in an individual of roles which were both legislative, executive and judicial, was acceptable, because we knew precisely who they were and the scrutiny of them was intense on any decision which might see them conflicted. Feeling that pressure, they acted impartially.
That the media and the electorate seem to have lost interest in the importance of the concept of the separation of powers – and as a consequence shrugged their shoulders when those conflicts have been shown to exist and where decisions have manifestly been made for political reasons – is a sad indictment of the condition of our democracy.
Setting up an “independent” AG, or Lord Chancellor, appointed by committee and one further step removed from the fulcrum of the three estates, is potentially more dangerous. Who will these people be and who will form the “committee” which chooses them? Under cover of their “impartiality”, guaranteed of course by their appointment by the “independent” committee, can they not be just as partial, or even more so, than Scotland and Straw have been?
Be careful what you wish for!
Never mind the matter of reform … that was a long grass issue from the outset with this lot.
Far more “A question of Judgement” is the housekeeper’s employment issue … the judgement of both the Prime Minister and his Attorney General and she still being in the job!
I thoroughly agree over the Iraq war fiasco, though the BAe Saudi affair was complicated over whether the prosecution would be in the public interest. It’s just a pity an absolute fortune was squandered on the investigation before what one would have thought was this fairly elementary point was considered.
I agree too over the seperation of powers issue but please, do we really need yet another quango?
And there are occasions when, for us mere mortals, to see the great and the good crashing to the ground, having tripped over a pile of their own red tape, is delightfully assuring. We haven’t forgotten
http://news.bbc.co.uk/1/hi/uk_politics/4999610.stm
yet.
I do hope, Lord Tyler, you haven’t forgotten the Ping Pong Post you were considering awhile back, I am looking forward to it.
Lord Tyler: One day in an elected HoL peers will again exercise real power instead of the current stopgap arrangement as ‘spell checker’ to the Commons. When that day comes the house might reflect on how the state’s interests might best be served legally.
This is the primary role of the Attorney General.
The Prime Minister was wrong to think that the role could be separated from government. Its simply unacceptable to have a prospective loose cannon on the go answerable to no one. The Attorney General must be answerable to somebody and that is government, it’s a very pragmatic arrangement.
There are however other questions to be asked.
How does Parliament sack an Attorney General? Does Parliament have the authority to represent the state in the wider sense? Certainly, the Solicitor General for England and Wales under the Law Officers Act 1997 could fill the vacuum for such a departure.
The problem for Parliament is that documents surrounding any controversy are protected from publication by government especially those exercising power. The current lot states that disclosure would affect cabinet government adversely.
The only redress we have is democracy itself and the removal of a government and its Attorney General by application of the vote in a general election.
As for the present incumbent, she highlights the inadequacy of Parliament and its imperfect laws that must have supporting regulations and where any breach or ignorance of regulation is not a crime in itself: so why have the law in the first place?
Ref: Law Officers of the Crown
http://en.wikipedia.org/wiki/Law_Officers_of_the_Crown
Law Officers Act 1997; Chapter 60, 1.1
http://www.england-legislation.hmso.gov.uk/acts/acts1997/ukpga_19970060_en_1
Why must we make the House of Lords an elected House before we allow them to make substantial and real contribution to the legislation of the UK? Why is it we assume that legitimacy is only gained through elections?
Personally, I think that an all elected House will in the end bring about nothing more than the same corruption we see in the Commons, and will not act as a remedy to it. We can’t fix a problem caused by party politics and attemot to force ideologies by adding more of the same, and since the root problem is that the politicians rest on elections and voter blocks and so make deals with various interests and rely on emotional language to sway the public in their favour, if we allow the Lords to be elected we will see the same sort of thing.
As regarding the attorney General, in the future an all elected House of Lords wouldn’t solve that either, since they’d do what is politically expedient with her (Or him) after consulting their parties stance, and see if keeping her around would be good for the agenda.