Society of Labour Lawyers – written evidence (RLC0017)

Submitted by Bren Albiston, Lawyer and Labour Party activist, Society of Labour Lawyers

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

1. Introduction

1.1       The House of Lords Constitution Committee (the Committee) has launched the above named inquiry into the functioning of the “Law Officers”, which it has defined as the Lord Chancellor and the Attorney General of the United Kingdom (the Inquiry). Primarily, it appears that the Committee is most concerned with the functioning of the office of Lord Chancellor following the reforms made to that office following the passage of the Constitutional Reform Act 2005, and the efficacy of those reforms in relation to the protection of the rule of law and the separation of powers more broadly. As well as, the appropriateness of the roles and functions of the Attorney General, and how these roles and functions operate to protect or undermine the rule of law.

1.2       We have not answered all of the questions put and we will not answer all of these questions separately, rather we will take some of the different questions together, where we think most appropriate. Further, we do not profess to have the expertise of, perhaps, others providing submissions, particularly in relation to criminal matters. Consequently, where this is the case we will make only brief comments.

1.3       Nevertheless, before answering the questions posed by the Committee specifically, we have sought to identify the primary underlying issue which appears to underpin the questions asked, as well as setting out a broad answer to this issue, to which all of our more particular answers relate.

1.4       In our view, that primary underlying issue is that the current Law Officers, and perhaps a number of their predecessors, have not been viewed as either competent in performing their roles or willing to stand up to their ministerial colleagues (or, indeed, in the case of the attacks on the judiciary following the Miller judgments, outside bodies such as the press) in defence of the constitution and the rule of law, or indeed both. There are a range of ways in which to solve this issue, which may in practice be complex, challenging and controversial. However, broadly, the answer to tackling this issue is, in our view, relatively simple.  That is, Law Officers should first be professionalised and second, largely, given a constitutionally protected status compared to, for example, a minister of state. Consequently, the answers provided below are given with these overarching themes.

1.5       Please note that the authors of this response, Professor Thom Brooks, George Peretz QC and Bren Albiston, are members of the Society of Labour Lawyers, an affiliate of the Labour Party, however this response should not be construed as necessarily representing the position of the Society.

2. Questions 1 & 2

2         

2.1       As set out above, it would appear that the key issue underlying the purpose of the Inquiry is that the Law Officers are failing in their roles as guarantors of the rule of law. Which is reflected in a number of more and less well-known cases and incidents over the last decade, particularly in relation to Brexit, most famously in the cases of Miller I[1] and II[2]. Consequently, the answer the first part of question 1, is plainly, in our view, that the rule of law is not being protected within Government effectively. In answer to the second half of question 1, as set out above, the position of Law Officer (as defined), suffers from a lack of professionalism, which has, in our view, resulted from the increasing politicisation of roles of the Law Officers. Such politicisation, particularly in respect of the Lord Chancellor, is at least in part a consequence of the reforms made through the Constitutional Reform Act 2005 – however, the increased politicisation of the role of Attorney General is simply a result of a lack of proper safeguards and of a Prime Minister who has chosen to appoint Attorneys General and Solicitors General unwilling, or incapable of fulfilling their constitutional roles.

3. Questions 3 & 4

3         

3.1       There is, in our view, further scope for reform of the role of Lord Chancellor. Briefly, the primary goal of such reforms should be to enhance and entrench the role of Lord Chancellor as a constitutional guardian. There are a number of jurisdictions which have analogous roles, such as the Défenseur des droits in France, the Defensor del Pueblo in Spain or the various chapter 9 institutions in South Africa. In these examples, such offices have a particular constitutional role to scrutinise and, if necessary, litigate in their respective constitutional courts to uphold citizens’ rights. However, there is no reason why such a role cannot be extended to scrutinizing government actions in respect of wider constitutional principles beyond individual rights. This would require two further reforms, first the creation of a non-ministerial department to support the work and investigations conducted by the Lord Chancellor. The second is that the Lord Chancellor would necessarily need to have automatic standing to bring claims of the type contemplated above.

3.2       The natural consequence of reforming the role of Lord Chancellor in this way would be to necessarily require such a position to sit outside of cabinet and indeed outside of Government altogether. However, in light of the UK’s current constitutional arrangements, unlike the offices set out above in other jurisdictions, a reformed office of Lord Chancellor ought to remain a member of Parliament, and most appropriately (in the current constitutional arrangement) a cross-bench peer. In this way, the Lord Chancellor would have the facility to speak on legislation which they may consider effects citizens rights or offends wider constitutional principles. Indeed, it may be thought appropriate to give the Lord Chancellor a specific role in the legislative process, such as giving the Lord Chancellor the role of certifying that a bill before Parliament is consistent with the Human Rights Act, rather than leaving that function to a Minister of State (as currently required).

3.3       Further, in line with the professionalisation points raised above, the qualifying criteria ought to be amended such that only a legally qualified person should be eligible for the office of Lord Chancellor or, in exceptional circumstances, a person who is, through experience, qualified for that office. However, the discretion to decide what that experience ought to be, and indeed the entire process of appointment, should, in our view, be analogous to that used for the appointment of Justices of the Supreme Court, though the final recommendation should be made directly to the monarch by the chair of the appointments commission.

4. Question 5

4         

4.1       In answering this question, we start from the following propositions (in this section we use “the Law Officers” to mean the Attorney General, Solicitor General, and Advocate General for Scotland):

1. The Law Officers, and particularly the Attorney General, need to command the confidence of the government of the day, and in particular of senior ministers, both as to their legal expertise and judgment and as to their commitment (subject to their duties to the courts, to the rule of law, and to Parliament) to finding legal solutions that advance the government’s policy objectives.

2. On the other hand, the Law Officers need to command the confidence of Parliament and the wider public that their commitment to the rule of law and their duties to the court and to Parliament will, where necessary, come before their political commitment to the government of the day, and that they will exercise their independent and professional judgment both in advising government and in exercising the powers of their office (for example in relation to prosecutions, sentencing, and litigating in the public interest before the courts).  It is also of fundamental importance that civil servants and the armed forces can be confident that when the Law Officers have advised as to the lawfulness of instructions given to them – sometimes in matters of enormous importance and consequence – then that advice is independent and authoritative.   

3. Given the importance of their role in advising both the government and Parliament as to the law (for example, to take recent examples, on the lawfulness of proposed military action, on the meaning and effect of a proposed treaty, or on the compatibility of proposed domestic legislation with international law), the Law Officers need to be able to answer questions from any MP and, where their legal view is of importance to a question to be decided by the Commons, to take part in its debates.  The same point also applies where the Law Officers have responsibility for decisions as to prosecutions and other decisions with legal importance (for example, on whether to appeal against sentences), and ministerial responsibility for the CPS and other prosecution services.

4.2       As explained above, there has been considerable and justified public concern that Law Officers in the current government are insufficiently committed to the rule of law and to maintaining the standards required of those that occupy their high office: the current Attorney General’s legal advice on Part 5 of the Internal Market Bill was almost universally regarded by practising and academic lawyers as incoherent and inconsistent with the rule of law (and led to the resignation of both the Advocate General for Scotland and the Treasury Solicitor); she improperly commented in public on the question of whether Dominic Cummings had breached Covid rules at a point when criminal proceedings could well have been at issue, and legal arguments advanced by her were criticised by the Court of Appeal in unusually strong terms when applied to a serving Attorney General (see Long [2020] EWCA Crim 1729 at [83-90]).  All of those incidents undermine public and Parliamentary confidence that current Law Officers are able or willing to exercise expert and independent judgment when advising the current government on legal issues and in exercising their powers.

4.3       We believe that, against that background, there is a strong case for reform.  That reform could usefully draw on experience in the devolved administrations and Ireland, as follows:

1. In Scotland, the Scottish Law Officers are, under section 48 of the Scotland Act 1998, appointed by the Queen on the recommendation of the First Minister with the agreement of the Scottish Parliament.  They are members of the Scottish Government (section 44) but unlike other Scottish Ministers need not be members of the Scottish Parliament.  However, under section 27 of the 1998 Act, they may take part in proceedings of the Scottish Parliament (subject to standing orders) but may not vote.  Recent holders of the office have been distinguished advocates or solicitors in private or government practice without party political affiliation.  However, that fact did not prevent the last holder of the office of Lord Advocate from being the subject of intense public scrutiny and some criticism for his role in the controversy surrounding Alex Salmond – as to which we make no comment other than to observe that not being a practising politician does not insulate law officers from allegations of being less than impartial.

2. In Wales, the position of the Counsel General is very similar: he or she is appointed by the Queen on the recommendation of the First Minister with the agreement of the Senedd.  He or she need not be a member of the Senedd but if not may take part in its proceedings (subject to standing orders) but may not vote.  Most holders of the office have been members of the Senedd and thus supporters of the governing party, but one long-serving Counsel General was a QC in private practice who was not a member of the Senedd and had no public party affiliation.

3. In Ireland, Article 30 of the Constitution provides that the Attorney General is nominated by the President on the recommendation of the Taoiseach.  He or she may not be a member of the Government, and is not a member of the Dail.  Holders of the office have to date been drawn from the practising bar, and have often (though not invariably) been public supporters of governing parties (and in some cases former members of the Dail).

4.4       We agree that the Law Officers should be independent, in the sense set out in (2) above.  That should not, however, in any way rule out the appointment of MPs or of lawyers with a public political affiliation: we do not believe that either being an MP or having a public political commitment is in any way necessarily inconsistent with independence of judgment, expertise, or willingness to give inconvenient advice, and (as we note at (1) above) it is also important that ministers have confidence that the Law Officers  are generally supportive of the government’s political objectives.  We further note that many past Law Officers have been MPs and have maintained full public, Parliamentary and judicial confidence in their independence, expertise, and judgment.

4.5       In our view, it matters little whether the Law Officers  are or are not formally members of the government: the fact that the Attorney General of Ireland is not (formally) a member of the Irish Government has not protected the role from fierce criticism and accusations of partiality. 

4.6       However, we would support a requirement – to be created by statute – that the Law Officers be confirmed in office by a vote of the House of Commons (following the precedent in Scotland and Wales).  That would provide some protection against  appointments motivated solely by the view that the appointee was likely to give convenient rather than correct legal advice or exercise their powers in a politically convenient way.  It would also provide the Law Officers with some protection from being dismissed for giving, or because they were regarded as likely to give, inconvenient advice (as is widely understood to have been the case on at least two occasions since 2010 – the cases of Dominic Grieve QC and Geoffrey Cox QC), and thus assist in maintaining the public perception of independence. The opportunity could be taken at the same time to set out the duties of the Law Officers in relation to the rule of law, independent judgment, and accountability to Parliament and the courts – which we think is a more effective response to concerns as to the changing role of the Lord Chancellor and its consequences for maintenance of the rule of law within government than formally removing the Law Officers from the list of ministers.

4.7       We also see a very strong case for making it easier to appoint Law Officers who are not serving MPs.  Given that the public now (rightly) expect MPs to be full-time, there is an obvious problem in finding MPs with recent and extensive experience of advising and litigating on the complex and difficult legal issues that the Law Officers have to deal with – experience that is (at least) a considerable asset to the Law Officers and which strengthens confidence both within and outside government as to the independence and expertise of their advice and decision-making. 

4.8       One obvious possibility – a possibility taken up on various occasions by the last Labour government – arises from the fact that there are two separate law officers for England and Wales (the Attorney General and the Solicitor General).  That allows for the appointment of a team of law officers for England and Wales that consists of a legally-qualified MP and a distinguished lawyer in private practice: a solution that can combine the best of both worlds in securing both independence and expertise (and the perception of independence and expertise) as well as ready accountability to the House of Commons, such as is the case in New Zealand (where the Solicitor General is a senior, legally qualified, civil servant).

4.9       However, that solution is only achievable at present if non-MP law officers are appointed to the House of Lords, from where they have no right to take part in proceedings in the Commons.  Moreover, that solution depends on the ability of the Prime Minister to make appointments to that House at will.  Since we consider that that power should be removed in a reformed upper House, and given that membership of the House of Lords is not an adequate means of ensuring accountability to the House of Commons, a better and more permanent solution is needed.

4.10  Again, we would suggest drawing on the Scottish and Welsh models, and giving Law Officers who are not MPs a right to take part in (but not to vote in) proceedings of the House of Commons to an extent governed by Standing Orders.  That would enable the Law Officers both to be accountable to the House of Commons and (where appropriate) to advise it effectively on legal issues relevant to its deliberations.  That solution has worked well both in Scotland and in Wales, and we see no reason why it would not work in Westminster. We would also apply that solution to the Advocate General for Scotland, noting that, despite its constitutional importance (for example, in relation to devolution issues) no holder of that office has since 2005 been a member of the House of Commons, each being appointed to the House of Lords.

5. Question 6

5         

5.1       We are of the view that there are circumstances in which, a properly reformed (along the lines set out above) office of Attorney General ought to be involved in a decision to prosecute certain offences. 

5.2       There might be reasons relating to national security, public safety or the wider public interest that are relevant to the decision to prosecute or to not prosecute. The Attorney General is in a position to have knowledge of such reasons, as a member of the Government, and it is appropriate given this role that the Attorney General might make such a decision. For example, this makes sense in light of the Attorney General’s essential role in approving the prosecuting of any offences relating to the Official Secrets Act or representing the government at the International Court of Justice. It is then for the courts to independently render verdicts and it is right this is free from any political interference.

5.3       Similarly, the Attorney General is able to recommend sentences are reviewed, such as when s/he deems them too lenient. It is noted that the decision to review a sentence may be political, such as on grounds of public interest that the Attorney General is entitled to act upon. However, the decision to review is not a decision to increase sentences per se. It is correct that sentence outcomes are decided independently of political interference. There is nothing, in our view, inherently wrong with this power and indeed, with an appropriately reformed office of Attorney General, such a power may prove to be an important safeguard, which would likely serve to enhance the public’s confidence in the criminal justice system.

26 March 2022