Abstract
Foreword by Sir Robert Buckland KBE QC MP:
The Law Officers of the Crown are sometimes described as the submarines
of Government, working below the radar and surfacing only when there
is a significant issue to be addressed. I agree with this characterisation, but
I also think that lively discussion and debate about their role is beneficial,
which is why this discussion paper by Conor Casey and John Larkin QC
is so welcome. Policy Exchange are once again to be commended for
making sure that the debate about constitutional affairs is not entirely one-way.
Such a lack of debate led to the flawed Constitutional Reform Act
2005, for example. A lack of balance is also evident in recent criticism of
the Attorney General’s announcement that she is considering referring a
point of law to the Court of Appeal in the wake of the Colston statue trial.
Attacking this announcement as disgraceful political gamesmanship or
even institutional racism, as some have, is clearly misconceived. However,
it does usefully reveal the difficulty that some people have in thinking
about the Attorney General’s role, which this timely paper helps correct.
David Mallet, in his 1740 “Life of Francis Bacon”, memorably described
the offices of Attorney and Solicitor General as “rocks upon which many
aspiring lawyers have made shipwreck of their virtue and human nature.”
JP Collier wrote in 1819 that “of all the offices in the gift of the Crown,
that of Attorney General is perhaps the least to be coveted for… the person
filling that place can scarcely avoid being the object of general dislike”.
There is no doubt that both the Law Officers of England and Wales endure
some tough moments, but their constitutional value endures, despite
change and evolution when it comes to their detailed functions. Having
been a Law Officer myself for just short of five years, I can testify to the
benefits of Law Officers being in the House of Commons, having to be
directly accountable for the organisations they superintend and having
the sort of direct political influence that appointed officials simply cannot
possess.
One aspect of the work of the Law Officers that has not really changed
is their involvement in some litigation, either conducting it directly in the
Court of Appeal or other senior courts, or advising and being consulted on
the course of major litigation where the Government is a party. It is implicit
that, in a case involving the Government, its very own submissions reveal
its view as to the merits of a case. To make explicit what is implicit by
expressing an opinion about a case after its conclusion is not, and cannot
be, objectionable. What would be clearly objectionable, however, would
be a refusal by the Government to abide by the judgment, which would
demonstrate not mere disrespect for the court but complete disregard for
the rule of law. Equally objectionable would be personalised comments
and attacks on the integrity of judges, who are in no position to answer
back. To suggest, however, that Law Officers should be wholly prevented
from either disagreeing with or making positive comment about completed
cases is to take things much too far.
Further, it should be entirely expected for a Law Officer to support
the Government’s policy on judicial review or other types of legal
or constitutional reform, whilst maintaining scrupulous professional
objectivity when conducting individual cases and determining the public
interest. The Law Officers are not Ministers who have responsibility for the
development of policy, but the making by them of measured contributions
to legal debate should not be prohibited. Delivering such views in a legal
conference seems to me to be a proper setting too. Although a recent
Attorney made a speech at a Party Conference, I would hope and expect
that very much to remain an exception, rather than become a rule.
Casey and Larkin’s conclusions are the right ones. Law Officers and
Ministers should feel confident about making measured and reasonable
points without being subject to a barrage of unreasonable criticism that
could stifle debate. I firmly believe that the Law Officer model used in
England and Wales has worked, and will continue to work, well, and that
those who serve in these offices will respect their constitutional boundaries
whilst not having to maintain a sphinx-like silence!