Abstract
The House of Lords Constitution Committee is currently investigating the
role of the Law Officers. The Committee have outlined several questions
that frame its inquiry, including whether it is “appropriate or helpful for
the Law Officers, as Government legal advisers, to be politicians serving in
Government?” The inquiry may be the most thorough examination of the
Law Officers since the period 2007-2009, during Prime Minister Gordon
Brown’s campaign for constitutional reform. It was clear at that time
some in the then Labour Government were open for reform, with Prime
Minister Brown announcing to the House of Commons that the office of
Attorney General “needs to change”. Around the same time, the House
of Commons Constitutional Affairs Committee and House of Lords Select
Committee on the Constitution both issued reports concerning potential
reform, with the former advocating significant change. The Commons
Committee recommended reform along the lines that responsibility for
providing legal advice to government and superintending the prosecution
services should be vested in a statutorily independent career lawyer and
not a politician or member of the Government.
In the end, however, Government and Parliament did not proceed with
significant reform. While some recommendations made by the House of
Commons Committee were received positively by the Labour Government
(even if not acted upon in the end), its most consequential proposals were
rejected. Although the then Government initially appeared enthusiastic
about the prospect of reform, in the end they definitively rowed back
from the idea. The recommendations of the current House of Lords
Constitution Committee – whose members include a former Supreme
Court president, Lord Chancellor, and Solicitor General – will no doubt
spark renewed debate on the Attorney General and its proper role in the
constitutional order.
The United Kingdom currently faces a daunting set of challenges,
including navigating the complex socio-economic problems and
opportunities facing Britain post-Brexit, the ongoing fallout from the
Russian invasion of Ukraine, rising food and energy costs, political
deadlock in the Northern Irish Assembly, potentially significant legislative
reform of human rights protection, and the possibility of Scotland leaving
the United Kingdom, to name just a few. These issues will raise countless
thorny legal and constitutional issues, about which the Prime Minister and
his Cabinet will invariably turn to the Attorney General for legal advice
and guidance. The Office plays a critical role in the constitutional order
and questions concerning its reform should therefore be subject to serious
debate and reflection.
This report aims to contribute to ongoing debates by arguing that
the Labour Government under Gordon Brown acted wisely by rejecting
significant constitutional reform, and that current political actors should
follow suit. As such, I offer a defence of the institutional status quo of
the Law Officers. I suggest that the current configuration of the Attorney
General (and Solicitor General), as a law officer with legal and political
dimensions, works well. I also argue that the costs of moving to an alternative
model of Attorney General could be steep and not worth incurring given
the overall robust health of the contemporary Office. However, my
defence is qualified in that I suggest several moderate reforms would be
prudent to ensure proper balance is maintained between the political and
legal dimensions of the office, so that the former does not compromise the
latter. I proceed in five parts.
Part I offers an overview of the Attorney General’s Office and its
diverse set of functions and responsibilities. This part provides an
account of the dual legal-political nature of the office that I defend. Part
II outlines the strongest critiques of the office and why calls for reform
arise intermittently. Part III offers a defence of the office and argues
that successive Attorneys General have, for the most part, maintained
appropriate balance when simultaneously carrying out their role as legal
advisor and guardian of the public interest and rule of law on the one
hand, and their position as a member of government on the other. I also
argue that when appropriately balanced, the political and legal elements
of the Attorney General are complementary to each other. Part IV analyses
several different constitutional systems to probe the potential political
risks of alternative models of apex legal advisors. I suggest in light of the
overall robust health of the office that such risks are not worth incurring.
Part V outlines a slight qualification to my defence, which is that several
reforms would be prudent responses to some legitimate concerns raised
in part III and would help solidify appropriate balance between the dual
dimensions of the Attorney General’s Office. A brief conclusion follows.