Goldsmith defends his role

The Attorney General has been defending his role in front of the Constitutional Affairs Select Committee this afternoon – I expect him to do so aggressively and firmly. And in the main, I’ll agree with him.

Some people have been saying recently that the government should get its legal advice from someone who is “independent”. Well, that sounds fine, except that government already gets reams and reams of legal advice from independent lawyers. In a sense the whole point of having an Attorney General at all is that he or she isn’t independent in the strict sense – however independent-minded he or she is, which of course is a good thing.

The point of the Attorney is a minister is so that he or she can speak on equal terms with other ministers, shares their political commitment, can be trusted by them and shares in collective responsibility with them. So one reason for having him is precisely the same reason why a company’s Head of Legal* has a place on the board (in this sense I think the role should be beefed up – the Attorney should be a full member of the Cabinet, not simply attend). You’d be silly, wouldn’t you, to suggest that no PLC should have a lawyer-director, and that they should simply rely on barristers in chambers. That’d be crazy. And it’s much, much better for the person undertaking this role of in-house Head of Legal to be a visible, identifiable presence rather than some unknown special adviser – which is where the Prime Minister would turn for his own legal advice if the Attorney were abolished. Another reason is so that major legal decisions can be taken at ministerial level by someone who’s accountable to Parliame – unlike any independent lawyer or office-holder.

Nor do I agree with Harriet Harman’s line, that the Law Officers’ advice should be published. It reminds me of the quite ludicrous view put forward by Lord Alexander a few years ago, that the advice should not only be public, but should be appealable. Mad, mad, mad. Did he think that meant government policy had to change? Aren’t the courts a sufficiently effective mechanism for giving definitive, binding legal rulings?

Anyway, back to the Harman doctrine: publishing Law Officers’ advice, like publishing any legal advice, would merely have the effect of weakening the government’s position in any challenge to its policies, because the whole world would see where it itself had doubts about the legal risks involved in certain policy choices. It would be placed at a disadvantage as compared with vested interests of all kinds. It’d also give legal advice a more central, decisive role than it deserves in political decision-making. I’m against it.

So overall, I’m in favour of the Attorney. If the role didn’t exist, we might well feel we should invent it; and I think it’d be a mistake for Gordon Brown to abolish the role in a ham-fisted, rushed and botched repeat of the farce over the Lord Chancellor’s post a few years back.

There is a danger that the role is expanding just now, mind, and that the Attorney is getting more involved in criminal justice policy than Attorneys were in the past. I’m not so sure about that.

* I feel at this point readers should stand up and repeat the phrase, in a manner reminiscent of “Crackerjack”.