Dr Conor McCormick, Lecturer in Law, School of Law, Queen’s University Belfast – written evidence (RLC0005)

House of Lords Constitution Committee inquiry into the Role of the Lord Chancellor and the Law Officers

Introduction

1. I have been researching the constitutional legitimacy of the UK law officer regime on a holistic basis since 2015. My book on this subject, The Constitutional Legitimacy of Law Officers in the United Kingdom, will be available from Hart Publishing in July 2022.[1]

2. This submission summarises some of my views about the law officers who serve as members of the UK Government, namely the Attorney General for England and Wales (who is also the Advocate General for Northern Ireland),[2] the Solicitor General for England and Wales (who may function as the Advocate General for Northern Ireland when deputising for the Attorney),[3] and the Advocate General for Scotland.[4] In other words, I have confined my comments to ‘Law Officers of the Crown’ and their roles, in keeping with the focus of the Committee’s Call for Evidence.

3. For reasons of space and speciality, I have not sought to comment on the Committee’s questions about the office of the Lord Chancellor other than where it has been necessary to consider them conjunctively with the Committee’s law officer questions. In the sections which follow, I offer brief responses to each of those questions in turn.

How is the rule of law being protected within the Government, and how do the law officers ensure this?

4. The rule of law is protected within Government by a team of executive lawyers who translate the wording of statutes and judicial decisions into context-specific advice for the impartial civil servants who, in a practical sense, deliver the democratically mandated objectives of the Government. In addition, the rule of law is protected by the constitutional training of these civil servants and by the leadership of their official and ministerial superiors.

5. There is a formal hierarchy of legal advice within the Government.[5] All officials dealing with controversial or contested questions of law are required to refer their queries along a chain of command which, via a number of intermediaries, ultimately leads to the law officers.[6]
6. The fact that the law officers sit at ‘the apex of the legal hierarchy’[7] is an important constitutional provision for satisfying the seeming need for legal advice to the Government which is ‘final and determinative’ and also the need to secure some degree of consistency in public sector decision making.[8] In fact, it has been said that matters about which the law officers have given opinions are ‘subject to advice which is so authoritative as to be binding’ until ‘different advice is given or a court gives a contrary judgment’.[9] In this sense the law officers ‘occupy a position analogous to that of the “final Court of Appeal” on matters of strictly legal advice’ within Government,[10] though from a departmental perspective the law officers are not always viewed as the most suitable source of ‘external’ advice.[11] This can occur, for example, where the law officers’ expertise is known to be inferior to specialist civil panel counsel. Therefore, as Daintith and Page put it, while the ‘political pre-eminence’ of law officers’ advisory opinions is unquestionable, their lack of ‘a monopoly of external advice’ and the limits of their own specialist knowledge must be properly weighted in any evaluation of their authority among executive officials.[12]

7. Government Ministers are expected to familiarise themselves with the circumstances in which is it is appropriate to consult the law officers in accordance with the Ministerial Code. The latest Code vaguely requires that the law officers ‘must be consulted in good time before the Government is committed to critical decisions involving legal considerations’; though the general meaning of this obligation, which has been heavily abbreviated over the course of several editions, is apparently well understood within Whitehall.[13] It is also the Code which requires Ministers to seek guidance from the law officers before any personal legal proceedings which may have implications for them in their official capacity are initiated or, indeed, where they become embroiled in proceedings as a defendant or a third party.[14]

8. The Ministerial Code explicitly recognises that the referral obligations outlined above must be ‘read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life’.[15] While a previous edition of the Code referred not just to ‘the law’, but to ‘the law including international law and treaty obligations’, the Government has stated on multiple occasions that this deletion did not herald or represent a substantive change.[16] The Court of Appeal has confirmed this reading of the deletion.[17] 

9. The advice of the law officers is confidential by convention and may not be divulged outside Government without the consent of both the person who sought the advice and the law officers themselves. In this context, it is important to note that the convention makes it difficult to assess with any certainty the extent to which the law officers are effective at discharging their responsibilities to protect the rule of law. Equally, it is important to recognise that there are sensible reasons for maintaining the convention in most circumstances by default, including those associated with the need for legal advice privilege in general. I will return to this debate below.

10. Notwithstanding these limitations on our ability to externally evaluate the effectiveness of the law officers’ legal advice as a mechanism for upholding the rule of law within Government,[18] Dr Klearchos Kyriakides has helpfully summarised its general implications in the following terms:

[T]he advisory function of the Attorney General is regarded as embracing an intertwined pair of consequential duties. One requires the Attorney General to ensure that his [or her] legal advice is not simply received by the appropriate persons in the Government but, where appropriate, is integrated into the policy-making, decision‑making and legislative processes. The second duty requires the Attorney General to ensure that the Government operates within the law, especially in circumstances where he [or she] has tendered legal advice or is aware of a breach, or possible breach, of the law.[19]

It is my view that if the law officers do not feel able to discharge these fundamental duties, they should be constitutionally compelled to resign from the Government.

Have recent events demonstrated a shift in how the duty to protect the rule of law is being performed?

11. There are at least two ‘events’ that might be said to demonstrate some shifts in how the law officers’ duty to protect the rule of law is being performed.

12. First, there is the Government’s decision to lay before Parliament a Bill containing provisions which would have empowered it to breach the UK’s international law obligations under the EU Withdrawal Agreement.[20] The Treasury Solicitor, Sir Jonathan Jones QC, and the Advocate General for Scotland, Lord Keen, are to be credited for resigning from their posts in protest.[21] As I explained at paragraph 8, above, the Government accepts that it is bound to comply with international law. Nonetheless, the Attorney General, Suella Braverman QC MP, publicly defended the relevant provisions of the UK Internal Market Bill by reference to the dualist nature of the UK’s system for giving effect to international law.[22] This gave rise to serious concerns as regards the Government’s commitment to the rule of law on the international plane. In short, while it was obviously true that Parliament could legislate contrary to the UK’s international law obligations in the exercise of its domestic sovereignty, many considered that the Attorney General had failed to offer any respectable legal justifications for inviting Parliament to do so and thereby prioritised the political priorities of the Government over and above its legal responsibilities.[23] Indeed, Braverman was apparently reported to the Bar Standards Board (together with the Solicitor General, Michael Ellis QC MP) by ‘hundreds’ of complainants over this incident.[24] One commentator suggested that Braverman and Ellis’ failure to resign meant that they had ‘destroyed their legal reputations for the sake of their political careers’.[25]

13. The repercussions of this regrettable saga in respect of the Government’s commitment to international law are arguably all the more significant today when viewed alongside the Russian invasion of Ukraine and the importance of the UK’s reputation for upholding international law in this significantly graver context. The Attorney General deserves praise at this time for noting that ‘the world will condemn Russia’s clear breaches of international law’ and for confirming the Government’s commitment to do all that it can ‘to uphold the rule of law on the international stage’.[26] Thus it is be hoped that these statements signal a return to wholesale and unequivocal respect for the rule of domestic and international law within the Government, and that the Attorney General will never again countenance an intentional breach of it under her watch.
14. The second event is related to the first, in that it relates to a diminution in the professional reputation and public persuasiveness of some recent office-holders. Whereas in the past the office of Attorney General was normally reserved for senior lawyers with an abundance of legal experience and professional authority, some recent appointments appear to have extinguished this convention. Dr James Hand has summarised the gravity of these changes in the following terms:

Suella Braverman’s appointment as Attorney-General in February 2020 led to many critical comments in both the social and traditional media, focusing on her relative inexperience as well as her political views. Her appointment was notable for a number of reasons. She became only the second woman (and the first Conservative woman) to hold the office of Attorney-General for England and Wales and the first person of Asian ethnicity to have that role. Under 40, she became the youngest person to be Attorney-General since Spencer Perceval in 1802. She was almost 12 years younger than the average since 1900 and only Sir John Simon had a slightly shorter period between being called to the Bar and being appointed Attorney-General (15 and 14 years respectively against an average of 26.5 years). She had only ten years’ experience at the Bar before becoming a Member of Parliament and had under half the Parliamentary experience of her average post-1900 predecessor before her appointment. Furthermore, she was not a Queen’s Counsel until a few days after her appointment, which, while not unprecedented, is something for which there was little direct precedent; her post-1900 predecessors on average took silk a decade beforehand. One such precedent, however, was her predecessor bar one, Jeremy Wright, who – at 41 – was just under two years older on appointment (being then the third youngest since Perceval, after Sir John Simon and Sir Robert Gifford). His appointment, too, received a negative press.[27]

15. Suella Braverman QC MP has attracted more controversy than Jeremy Wright QC MP during her tenure as the Attorney General for England and Wales to date. In addition to her defence of the offending provisions of the UK Internal Market Bill, the following incidents have attracted varying degrees of negative attention in connection with her responsibilities to protect the rule of law:

1. The Attorney’s submissions to the Court of Appeal in connection with an unduly lenient sentencing referral, wherein her argument was considered so ill‑considered that the Court described it as both ‘unusual’ ‘to say the least’ and ‘regrettable’.[28]
    
2. The Attorney’s decision to publicly defend Mr Dominic Cummings, the Prime Minister’s former Special Adviser, following revelations concerning an alleged breach of the Covid-19 lockdown regulations.[29]

3. The Attorney’s public confusion in respect of certain details about two of the most significant public law cases of recent times (Miller 1 and Miller 2).[30]

4. The Attorney’s failure to provide a direct answer when questioned by a member of the Justice Committee about the relevance of a parliamentary sovereignty argument, in the context of criticisms she had made about the UK Supreme Court’s UNISON judgment (which involved a challenge to secondary legislation that had been made by the Government rather than by Parliament).[31]

5. The Attorney’s decision to deliver a speech which criticised a set of UK Supreme Court judgments (including UNISON, noted above) – though it should be noted here that there are some significant differences in opinion about this incident, with Professor Mark Elliott having been very critical of the Attorney’s arguments and their propriety,[32] while Dr Conor Casey and Mr John Larkin QC have defended the propriety of same.[33]

16. When coupled with Braverman’s unusually short profile of professional credentials, the net result of these controversies appears to have been a weakening in the authority of the legal advice emanating from the Attorney’s office and a related weakening in the protection that is afforded to the rule of law within Government. It follows, on this basis, that the introduction of some institutional reforms may be worth considering at this juncture.

Have the changes to the Lord Chancellor’s role introduced by the Constitutional Reform Act 2005 enhanced the role of the law officers as guardians of the rule of law?

17. Writing in 1964, Professor John Edwards believed it was ‘pardonable’ to refer to the Lord Chancellor as a ‘Law Officer of the Crown’ in so far as

the title [was] used to indicate the Chancellor’s constant availability as one of the principal legal advisers to the Prime Minister and the Cabinet, of which he [was] an established and senior member.[34]

However, in the same passage Professor Edwards also observed how

it [was] unlikely … that the Lord Chancellor would be consulted in the legal problems of government which arise daily in the various departments, a task that comprises a major proportion of the modern Law Officer’s responsibilities.[35]

18. From this point of view, the changes to the Lord Chancellor’s role that were introduced by the Constitutional Reform Act 2005 might be said to have had very little impact on the advisory role of the law officers, because the Lord Chancellor has never carried any significant responsibility for upholding the rule of law in this government-advice-giving sense anyway. Moreover, it could be said that this view is reinforced by the fact that the Lord Chancellor’s existing role in relation the rule of law in every other sense, and his or her role in respect of judicial independence, were clearly preserved by the 2005 Act.[36]

19. From another point of view, however, the changes brought about by the 2005 Act are more significant in so far as they may have diminished comity and understanding as between the courts and the executive. By removing the Lord Chancellor as Head of the Judiciary, in particular, it might be said that the Attorney General and (to a lesser extent) the Solicitor General have become the primary ‘bridge’, ‘hinge’ or ‘conduit’ between the worlds of law and politics as institutionalised by the judiciary and the executive. In theory, it now falls on the law officers to defend the legality of Government decisions before the courts in addition to their responsibility to defend and uphold the rule of law before their executive colleagues. This view of the 2005 Act and its implications is reinforced by the fact that the law officers must be legally qualified in order to acquire the professional status that is necessary to discharge these obligations, such as rights of audience and so forth. By virtue of their professional qualifications, moreover, the law officers are also bound by specific standards of legal ethics that are devised and enforced by their professional regulators. In this sense, the role of the law officers as guardians of the rule of law has almost certainly been enhanced.

Is it appropriate or helpful for the Law Officers, as Government legal advisers, to be politicians serving in Government?

20. I have had the benefit of reading a draft of Dr Conor Casey’s written evidence to this Committee and commend his summary of the advantages and disadvantages entailed by political and apolitical law officer models in general terms. Rather than repeating any of Dr Casey’s helpful considerations, I propose to highlight two additional arguments in favour of the status quo: one practical and one theoretical. On balance, these arguments tip my opinion in favour of maintaining the basic architecture of the UK Government’s political law officer model, though I do have a number of less drastic reform recommendations to suggest in response to other aspects of the Committee’s current inquiry and in the interests of enhancing the constitutional legitimacy of these law officers.

21. My practical argument in favour of the status quo – namely the appointment of a politically active law officer – is that on various occasions in the recent past apolitical law officer models have been tried and tested in different parts of the UK but with little success. I have been struck by the extent to which, in practice, executive bodies throughout the UK have tended to reject or abandon their support for apolitical law officer models (albeit with different degrees of apoliticisation) over time. Consider the following four illustrations:

1. Alex Salmond MSP attempted to ‘depoliticise’ the Lord Advocate’s office in 2007 by declaring that the office-holder would not be invited to attend Scottish Cabinet meetings routinely,[37] but soon thereafter it was reported that the office-holder did in fact attend a majority of Cabinet meetings;[38] suggesting that their presence was deemed useful in practice.

2. The predecessor to the office of the Counsel General for Wales was a completely non-political legal adviser to the National Assembly (as it then was), albeit informally constituted by Winston Roddick QC, but the subsequent Welsh experience arguably shows that an ever more ‘fused’ office (as between politics and law) has found favour in that jurisdiction too.

3. The office of the Attorney General for Northern Ireland has suffered from a notable legitimacy deficit since it was established on a statutorily independent basis in 2010.[39] It is my view that this model is the weakest of those in operation in the UK, as it places insufficient weight on the constitutional values of accountability and trust. Any attempts to ‘depoliticise’ the UK’s law officers elsewhere should be viewed against this backdrop.

4. Recently published documents from the National Archives show that when the office of the Advocate General for Scotland was being designed in the run-up to the devolution reforms of 1998, the Lord Chancellor of the day rejected proposals that would have meant relying primarily on the advice of civil servants on matters of Scots law (following the transfer of the Lord Advocate and the Solicitor General for Scotland to the devolved Scottish Government). Instead, the Lord Chancellor insisted that the UK Government would require what he called ‘a “career Scots lawyer” … able to proffer a combination of political and legal advice of the kind to which their Ministerial colleagues traditionally look to the existing four law officers’. The Lord Chancellor concluded, therefore, that this function could ‘not be left to an official’ and that the Government would ‘therefore have to add to the list of Ministers’.[40] 

22. My theoretical argument in favour of maintaining the basic features of the UK Government’s political law officer model stems from an important analysis by Professor Neil Walker. Analysing the position as it stood in 1999, Walker dismissed the existence of any ‘neat constitutional formula’ capable of resolving the tensions inherent in the functions of law officers, such as ‘doomed’ suggestions to separate their legal and political functions.[41] He argued that most commentators on public controversies surrounding the role of law officers tended to falsely characterise tensions in the role. He was dismissive of those who viewed them as tensions between the need to be a partisan politician and the need to be an independent lawyer, as well as those who viewed them as a tension between a guardian of the public interest and a government legal advisor.[42] Both of these views, he argued, grasped ‘only one element of a more complex truth’ about the role of law officers, namely that they are impaired by ‘parallel antimonies’, or simultaneous contradictions, between legal and political conceptions of their roles.[43] He made the compelling argument that these notions run in parallel

in the sense that the notion of the law officer as agent of government closely corresponds to a partisan conception of the role, whereas the idea of the law officer as independent custodian of independent values is linked to a public interest conception of the role.[44]

At the core of both conceptualisations, Walker submitted, is a universal challenge for every constitutional order faced with articulating a legitimate role for the law officers:

[to reconcile] their attachment to a particular government and its political objectives with their commitment to a broader set of values associated with the integrity of the legal and political order.[45]

In my book on The Constitutional Legitimacy of Law Officers in the United Kingdom, I argue that a law officer’s performance is not best evaluated with reference to the tenets of a simplistic ‘legal’ or ‘political’ conception of their roles. In concert with Walker’s view that neither of these approaches yield particularly helpful answers,[46] I suggest that more useful results can, in fact, be obtained from evaluations based on a trifocal model of legitimising constitutional values (namely independence, accountability and trust). I will attempt to explain this framework in a little more detail below.

What aspects of the Attorney General’s role require them to be accountable to Parliament?

23. I think it is helpful to distinguish between at a number of different forums that law officers in the UK must respect in the course of exercising their functions – with each forum type generally restricting its attention to different kinds of conduct.

1. Legal forums, such as the courts, are important in so far as they screen and reveal the credibility of the law officers’ legal opinions when they are tested in judicial proceedings. In addition, it now appears that a subset of the law officers’ decisions are themselves judicially reviewable.[47]

2. Executive forums, perhaps most notably the Prime Minister, exert a significant influence over the law officers in so far as their jobs are dependent on the continued confidence of same. The metric by which the law officers are held to account by the Prime Minister, and indeed the Cabinet, is obviously different from the accountability standards applied by the courts and other forums. It is important that the law officers are able to insist upon an appropriate degree of independence in this context, especially in respect of prosecutorial decisions. 

3. Professional forums, like the Bar Standards Board, can hold the law officers to account with respect to matters of professional legal ethics, such as duties of candour to the court; duties to decline instructions in areas of law outside an office-holder’s competence, and duties not to bring the legal profession into disrepute.
    
4. Political forums, such as Parliament, hold the law officers to account in a host of ways and in respect of a wide range of their functions. The main exceptions are threefold:

1. Matters about which legal advice has been provided to the Government, and which the law officers cannot therefore discuss without breaching the convention of non-disclosure in the absence of compelling circumstances.

2. Prosecutorial matters, where the law officers are at liberty to refuse to answer questions where doing so might prejudice ongoing criminal proceedings or where doing so would otherwise be contrary to the public interest.

3. Matters which fall within the ambit of other accountability forums that are better qualified to assess the law officers’ conduct against particular standards; such as the Bar Standards Board’s role in overseeing professional ethics and the judiciary’s role in overseeing the lawfulness of executive decisions.

24. I have previously outlined most of the circumstances in which the law officers can be held to account by Parliament. I refer the Committee to my co-authored Research Briefing for the House of Commons for further information of this sort.[48]

Do the Law Officers need to be members of either the House of Commons or House of Lords in order to be accountable to Parliament?

25. Strictly speaking, no, there are historical precedents that could be drawn upon to justify law officer appointments from outside Parliament – at least for limited periods of time. In 1931, for instance, William Jowitt held the office of Attorney General without a seat, while in 1924 Henry Slesser held the office of Solicitor General without a seat.

26. Normatively, however, I think that the law officers should be drawn from inside Parliament for all of the reasons that have already been ventilated in favour of a politically active law officer model.

Should the Law Officers’ legal advice to the Government be made public more routinely? If so, under what circumstances?

27. I think there are sound reasons for keeping the Government’s legal advice confidential by default, including the need to maintain client confidentiality in respect of information provided for the purposes of formulating legal advice, but I would certainly support greater clarification around the exceptional circumstances which outweigh those considerations and therefore justify disclosure. To some extent, I suspect that this can only be determined on a case-by-case basis with reference to the demands of accountability, independence and trust at any given time.

28. With that said, Professor Gabrielle Appleby has suggested (albeit with the Australian system at the forefront of her mind) that there are ‘at least two circumstances’ where there is a particularly strong case for the disclosure of government legal advice to Parliament  – namely where Parliament is considering Bills of ‘uncertain constitutional validity’ and where it is exercising its ‘constitutional function of holding the government to account’ over matters of national importance.[49] I can see the merit in these proposals.

29. One of the most controversial episodes in connection with this issue over recent years is, of course, the Government’s refusal to publish the full advice of the Attorney General on legal aspects of the EU Withdrawal Agreement relating to the Northern Ireland ‘backstop’ in 2018. The Attorney General of the day eventually agreed to publish his advice, but only after the House of Commons adopted a resolution holding Ministers in contempt of Parliament for their ‘failure’ to abide by its earlier motion calling for the advice to be published. The Attorney was at pains to emphasise that his decision to publish the advice was not to be taken as a general precedent, though the Procedures Committee has since observed that it is in the nature of a conventional discretion that it can be disapplied in appropriate circumstances and that it is entirely in order for MPs to seek the exercise of same.[50]

Is it appropriate for the Attorney General as a member of the Government to be involved in some decisions about whether to prosecute?

30. Consistent with my support (on balance) for the politically active law officer model in place at the moment, I do not think the Attorney General’s continued involvement in a fairly limited class of prosecution decisions is necessarily inappropriate. This view is premised, however, on the assumption that Attorneys General properly understand the degree of independence that they are expected to discharge in this context.

31. To appreciate the importance of this qualifier, the law officers should bear in mind the history that has preceded the Framework Agreements which regulate their relations with the prosecution agencies at present. The following episodes should be ever present in their minds:

1. The Campbell case, wherein Prime Minister James Ramsay MacDonald was forced to resign after covering up the pressure he and his Cabinet colleagues had placed upon the Attorney General, who acceded by dropping a prosecution that had been commenced against the proprietor of a communist newspaper.[51]

2. The Shawcross statement, which crystallised the constitutional position of the law officers when reaching public interest decisions after Campbell. A law officer is entitled to consult his or her ministerial colleagues in order to inform the discharge of his or her prosecutorial functions, but the assistance of those colleagues is confined to ‘informing him [or her] of particular considerations which might affect his [or her] own decision’.[52] According to Shawcross, it ‘does not consist, and must not consist’ in telling the law officer what his or her decision ought to be.[53]

3. The Corner House case, wherein a decision of the Director of the Serious Fraud Office, acting under the superintendence of the Attorney General, was challenged by way of court proceedings.[54] The Director had decided to drop an investigation into allegations of corruption on the part of a company known as BAE in the light of representations made by the Prime Minister, though those representations were communicated as information rather than orders (as in the Campbell case). While the Government survived judicial censure partly on this basis, the High Court called for clarifications to the Shawcross statement in so far as it was ambiguous about the force with which informative messages can be legitimately conveyed to the law officers by their Cabinet colleagues.[55]

4. The 2009 Protocol, which formalised the relationship between the law officers and the Directors of the Serious Fraud Office and the Crown Prosecution Service. This included some additional guidance as regards ‘public interest consultation exercises’ involving other Ministers, i.e. Shawcross exercises, perhaps most significantly by providing that the weight to be given to any such representations is a matter for the Director or the Attorney General.

5. The Framework Agreements, first published in 2019 but since amended, which have replaced the 2009 Protocol. The statutory superintendence of the Attorney General over the Directors of the Serious Fraud Office and the Crown Prosecution Service is broken down with greater specificity, together with guidelines in relation to offences where the law officers’ consent is statutorily required prior to prosecution, as well as guidelines about exceptional directions in the context of national security cases (and cases of a similar nature). Some changes introduced by the Framework Agreements simply reflect the evolution of organisational relationships between the relevant units over the course of ten years and a need for modern governance arrangements to reflect those changes,[56] such as the establishment of a ‘Ministerial Strategic Board’ responsible for setting the strategic direction of an ‘SFO Board’.[57] It is clear, however, that other changes were directly precipitated by high-profile controversy over disclosure failings on the part of prosecuting departments in the year prior to the initial publication of the Framework Agreements (together with related questions about the extent to which the law officers were in a proper position to account for those failings).[58] The UK Government, for example, has stated that the new agreements are intended to achieve a ‘strengthened’ relationship of ‘superintendence and sponsorship’ between the law officers and prosecuting departments.[59] Although it has no statutory basis akin to superintendence, the latter reference to sponsorship is a novel and interesting descriptor of these relationships given that it suggests, among other things, a renewed emphasis on the need for the law officers to protect the independence of prosecuting departments by helping to ensure adequate government resourcing.[60]

32. Against this background, I think the division of responsibility between the Attorney General and the Directors of the prosecution agencies is clearer than it has ever been before. Indeed, it could scarcely be much clearer to my mind.

33. At a more fundamental level, I do not believe it is democratically appropriate to confer ‘total independence’ on any law officer responsible for exercising prosecutorial functions. This will come as no surprise, given my views about the merits of a politically active law officer model. I think the point deserves some emphasis here just the same. As Professor Edwards once put it, the ‘principle of independence without the accompanying sanction of parliamentary accountability’ is ‘too high a price for any society to pay in achieving the goal of keeping partisan political pressures away from the exercise of prosecutorial discretion’.[61] There is, as Komorowski puts it, ‘a middle ground between utterly populist governance and splendid isolation from public opinion’ that the concept of public interest decision-making should encourage the law officers to find.[62]

Are any reforms necessary to the Attorney General’s ministerial responsibilities?
 

34.  Given the reforms to the office of the Lord Chancellor that were discussed above, there is perhaps a case to be made in favour of enhancing the Attorney General’s role in matters of Government policy about the legal system and the rule of law. As a legally qualified Minister, which the Lord Chancellor need not be, the Attorney General may often be better placed to shape government policies of this nature. As such, it is perhaps worth considering whether the law officers’ tripartite responsibility for criminal justice policy should be expanded to include criminal and civil justice policy. The Counsel General for Wales enjoys a broad policy brief of this kind at the devolved level.

35. While the law officers superintend the Crown Prosecution Service and the Serious Fraud Office, their oversight functions in connection with HM Crown Prosecution Service Inspectorate is formulated differently in the relevant statute.[63] Moreover, there is no statutory basis at all for the law officers’ oversight in respect of the Services Prosecuting Authority and the prosecutors stationed in Departments with their own prosecuting apparatus (such as the Prosecution Division of the Department for Work and Pensions). There may be good reasons for maintaining these divergent frameworks, particularly as regards the Inspectorate, but from my point of view there could be greater clarity around the law officers’ non-statutory oversight duties in particular. To what extent are they different from the duties provided for with greater specificity in the Framework Agreements?

36. I have ventured to include these proposals to expand the ministerial portfolio of the law officers with some trepidation, given my concerns about the diminished professional credentials of some recent office-holders. It may be helpful, therefore, to explain two further reform proposals that I wish to recommend to the Committee at this point:

1. I recommend that the appointment process for each of the UK Government’s law officers should be reformed so as to formally involve Parliament. In my opinion, this would operate so as to considerably enhance the authority of the law officers in Cabinet and to ensure that the influence of party-political considerations are kept constitutionally in check by formal accountability mechanisms. In Wales, no recommendation for the appointment or removal of a person as the Counsel General may be made without the agreement of the Senedd.[64] Likewise, in Scotland, the First Minister may only recommend to the Queen that a person should be appointed to or removed from the posts of Lord Advocate and Solicitor General for Scotland with the agreement of the Scottish Parliament.[65] Similar provisions could and, in my view, should be introduced in respect of the UK Government’s law officers.

2. I also recommend that the Attorney General should be made a full member of the Cabinet, rather than a Minister with ‘Cabinet level membership of the Government’ who attends the Cabinet only by invitation.[66] In my view, this distinction gives rise to false expectations of total independence from the Cabinet, when in fact the relevant constitutional boundaries recognise that it is appropriate for the law officers to consult their ministerial colleagues about public interest matters in certain limited circumstances. The independence symbolised by the distinction is said to be useful because it prevents the Attorney from being bound by collective responsibility in inappropriate circumstances, but I find this unpersuasive to the extent that it ignores the fact that such circumstances can be easily avoided by clear exceptions to the general rule. In Scotland, for example, there is a legislative provision which exempts the Lord Advocate from collective responsibility as a member of the Scottish Government in so far as the doctrine relates to his or her retained functions.[67] It is difficult to think of good reasons for believing that a similar proviso would not work effectively with respect to Cabinet membership. In truth, therefore, the distinction between ‘Cabinet level status’ and ‘Cabinet membership’ appears to have very few practical consequences, especially when it is borne in mind that the absence of a law officer from a Cabinet meeting in person carries ‘no guarantee of insulation against the pressures inherent in their subsequent reading of the Cabinet minutes, in which the strength or urgency of the opinions expressed around the Cabinet table are permanently recorded’.[68] Indeed, any conception of independence which ignores the fundamentality of interdependence with the Cabinet, particularly with respect to the executive advisory functions of a law officer, is difficult to support. To the contrary, the Cabinet level status of a law officer has been referred to as an important source of their authority before other governmental units, such as the prosecuting authorities.[69]

What are the constitutional boundaries that constrain the Law Officers? 

37. The oath taken by the Attorney General for England and Wales requires that they agree to

duly and truly minister The Queen’s matters and sue The Queen’s process after the course of the Law, and after my cunning… I will duly in convenient time speed such matters as any person shall have to do in the Law against The Queen as I may lawfully do, without long delay, tracting or tarrying the Party of his lawful process in that that to me belongeth. And I will be attendant to The Queen’s matters when I shall be called thereto.[70]

Needless to say, this is an arcane and obfuscatory formula which presumably does very little to impress upon a newly appointed law officer the constitutional boundaries associated with their office. In 2007, the Government proposed ‘to modernise by non-statutory means the oath of the Attorney General (and Solicitor General) to provide for an express duty to respect the rule of law’.[71] However, to the best of my knowledge, this proposal was never carried into effect. I think it should be, though I would not be averse to placing the oath on a statutory basis more akin to the oath of the Lord Chancellor. I would also make it clear that a law officer should resign if they feel unable to abide by such a solemn commitment.

38. Furthermore, having studied a wide range of controversies surrounding law officers across the UK, I have come to believe that there are three constitutional values that should be used to guide their conduct and to measure their constitutional legitimacy. The constitutional values in question are independence, accountability and trust.

39. For such a framework to be effective, however, I acknowledge that it is necessary to adopt clear conceptual understandings for each value in order to avoid controversies borne from misunderstanding. A clear conception of independence will take into account the importance of interdependence and contain lucid rules as regards the kinds of signal that can be sent to and from the law officers. A clear conception of accountability will acknowledge both the range of forums that UK law officers account to and the varying approval metrics employed by each type of forum. A clear conception of accountability will also incorporate strategies for dealing with decisions made by multiple officials and distinguish between different forms of obligation that may pertain between the law officers and their accountability forums. Finally, a clear conception of trust will recognise the significance of balancing individual and collective interests while also specifying the importance of resisting extreme incarnations of ideology or regulation.

40. I have attempted to elucidate this framework by reference to historical episodes of controversy in my forthcoming book on The Constitutional Legitimacy of Law Officers in the United Kingdom. Given time and space constraints, I am obliged to conclude by recommending that future law officers should be encouraged to read this research in order to inform their understanding of the values-based boundaries that emerged from it. 

14 March 2022

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