At the end of my interview the other day with Charon QC, I spoke briefly about the appointments of the Law Officers – the Attorney General, Dominic Grieve and the Solicitor General, Edward Garnier – and suggested Nick Clegg had missed a trick by not insisting on a Liberal Democrat in one of these posts. I really do think that’s a mistake on his part.
As I’ve often said, political commentators tend to underestimate the importance of the Law Officers, thinking the Attorney’s job merely a technocratic consolation prize for lawyers not given a proper policy job. Iraq should have shown people how wrong that is. The government is bound by collective responsibility to accept Law Officers’ advice and act on it; their advice sometimes determines government policy, and is often a strong influence on it. Major fields such as European policy involve a large amount of legal content – George Osborne’s negotiating strategy on regulating hedge funds and the financial services industry will be significantly informed by Treasury lawyers’ view of the meaning of the EU’s proposals, and if he’s not content with government lawyers’ advice, the final view will come from the Law Officers. The Law Officers also resolve disputes between departments when they turn on legal issues – a role they may need to play more often when, say, Vince Cable’s department disagrees with the Treasury, or Chris Huhne’s disagrees with Transport or DEFRA.
All of which means David Cameron and the Conservatives are at a clear advantage in the coalition, holding both Law Officer posts. Had I been advising Nick Clegg, I’d have told him he needed a Liberal Democrat Solicitor General – Lord Carlile might have been an ideal choice had he been willing. I’d also have suggested the coalition agree that LibDem Cabinet ministers have a right to insist on joint, agreed advice of both the Attorney and Solicitor General before being bound, and that irreconcilable disagreements be sent for binding resolution by Treasury Counsel, James Eadie or Jonathan Swift.
As I say: Nick’s missed a trick.
Those appointed seem to be very capable men – good choices. However, it might have been preferable to have a Lib Dem and Carlile might have been a good pick given that he will probably have to stand down as Independent Reviewer. Perhaps some other useful role may come Carlile’s way – there is a lot of reform coming on to the agenda. Personally, I would like to see someone like him getting a grip on reform of the Lords.
You are right about the Law Officer’s role. We had extensive debate some time ago about the legality of the Iraq War and our individual views differed – [excellent discussion however]. I am sure that we would agree that had Lord Goldsmith concluded that the intervention was illegal we would not have gone to Iraq and the military chiefs who pressed for the opinion would not have gone along with any other decision. The importance of the Law Officers must not be underestimated. [Baroness Scotland seems to have avoided any reform of their roles – but that is another story].
.-= ObiterJ´s last blog ..Costs: "Bordering on Despair" =-.
But don’t forget who the Advocate General is – http://www.oag.gov.uk/oag/31.22.html
That’s an excellent point. Law Officers’ advice to the Westminster government on legal matters affecting Scotland (which includes EU and human rights law of course) does formally come from both the Attorney and the Advocate General, and the advice must be agreed. How much the advice really is influenced by the Advocate General depends a great deal on personalities.
I can’t reveal any detail of my experience in government except to say the Advocate General’s input could be a rubber-stampy afterthought or it could be assertive and critical. A lot will depend on Lord Wallace himself. He will have the support of two or three good Scots lawyers who work closely with the Attorney’s staff. If I were him, I’d make it clear to them I wanted from them not political briefing, but briefing where appropriate on positions taken on particular legal issues by Liberal Democrat lawyers or from a generally LibDem viewpoint.
Or perhaps DC wanted two of his people in these posts so the Lib Dems would be bound by their advice?
At least both law officers are in the commons – and answerable to the House.