In today’s Times,
First, he says only the politically inactive should be appointed to the post: the Attorney should not be a supporter of the government. He says there should be security of tenure for five years; he says the Attorney should have power to publish his or her advice; and he says the Attorney’s policy role in criminal justice should be given to another minister.
That last one, I agree with. I think the http://www.raybani.com/ Attorney’s role is to be the government’s chief lawyer; and just as a company’s lawyer does not decide strategy, the Attorney should not decide government policy.
I’m not in agreement on his other points, though. I think critics of the Attorney’s role are all forgetting that he is simply the government’s lawyer – not an internal court of legal discipline in government, or in any sense a “safeguard” to prevent the government from doing things. Nor, finally, is he the source of definitive legal rulings binding on the whole country. That’s what courts do.
So, looking at it my way, why should he be politically independent? Independent minded, yes; every decent lawyer should be, and by the way, so should every minister and every MP, all of whom have political allegiances. There really is nothing dirty or corrupt in political commitment, even for a lawyer, and to suggest there is is akin to arguing that if Greenpeace wants to gain public trust, it has to ensure the lawyers it uses, and who gained it a great victory in the High Court recently, should on no account be environmentalists.
I disagree with Pannick on security of tenure, too. There’s no point in having a lawyer if you don’t have confidence in him and his advice. And the only point in security of tenure is that it forces the government to have a lawyer it doesn’t trust. If that happened, government would get its advice elsewhere, and the Attorney cheap oakley would be redundant. Again, I think the right answer flows from seeing the Attorney as just that – an attorney advising the government, not a provider of legal commentary public consumption, or of a paper trail on which to indict the government for its policy choices.
Finally, publication. The only point of this is so we know where the government believes its own legal arguments are weak, and when it has acted in defiance of legal advice or on the basis of equivocal advice. Well, I don’t think the sky would fall in if Attorney’s advices were published. But equally I see no benefit in it, and I’m not at all sure it’s in the public interest. The fact is, anti-war protesters argued in 2003 that the Iraq was was illegal, and they argued in 2006 that it was illegal. In the meantime, the Attorney’s advice was (David Pannick’s mistaken about this) published: and the published advice changed no one’s mind. The reality is that the war was either lawful or not, independently of what the Attorney’s advice was. His advice does not make a war lawful, or unlawful, whatever it says, any more than David Pannick’s advice makes his lay clients’ actions lawful. I don’t understand why I need to see his advice to them in order to criticise what they do, or argue its illegality. Of course seeing his advice would prejudice his Ray Ban outlet clients’ cases and help their opponents: and I think this is the only real point of publication.
Oh, and by the way: on BAe, I find it bizarre that David Pannick is arguing politicians should not be trusted to judge what’s in the public interest. That’s what politicians are there for! And as for cash for honours… what we need is a minor reform, such as removing the need for the Attorney’s consent in this kind of case where government ministers may be charged. Not the kind of ill-considered, unnecessary and (mark my words: it will be) botched surgery that so many people are arguing for at the moment.
I think you’ve forgotten that the Attorney-General has important powers in relation to the administration of justice – he can prevent any prosecution, and dealing with certain matters is reserved to him (the only one that comes to mind is trivial – dealing with public nuisances).
It is these powers which should be vested in someone politically independant.
Not forgotten, Marcin. Not forgotten at all. But why should the powers be vested in someone politically independent? To argue that, because a power is important it should be exercised “independently” is to argue that the power to increase tax or declare war should be exercised in that way. In other words, to take the politics out of politics. The only alternative is to argue that law and justice powers are somehow different from all other types of powers. But why should they be?
The argument isn’t that the politics be taken out of politics, but rather that we should have a practical (rather than formalistic) separation of powers. Thus, the holder of powers in relation to justice should not be in the control of those who hold executive power, because that is the path to impunity by the executive.
And on the subject of the independance of those with power to raise taxes, the main point of our parliamentary system used to be to separate tax-raising from the executive (the King and his ministers).
Separation of powers, Marcin – sure, okay, if you like. But separation from what? The CPS is the Crown; it needs to be separate from the judiciary. Not from the executive.
I think your path would lead to what is in fact a branch of the executive being less accountable than it is now, in the name of “independence”, and in effect being a law unto itself.
I don’t know why you would say this. I really can’t see the vice in having the power to stop prosecutions and investigations being held by someone who is independent of the executive, because they must be free to investigate the executive.
Just because the crown currently encompasses all normal branches of the executive, and the bits that investigate them does not mean that we cannot have a different constitutional settlement. What I’m arguing for is that we a) Have an executive who are not in the legislature, and not chosen by the legislature (leaving some form of election as the main choice), and b) that the functions of investigating crimes and abuses by the executive are discharged by an agency appointment to which is not in the gift of the executive, and whose budget is not subject to detailed control by the executive.
Whether this would be in the sphere of parliament, or form a separate counter-branch is a matter of choice.
This may be a lot like what you think I want. The reason why I do not think that your charges against it will do at all are that oversight of the executive is in any case supposed to come from parliament. Parliament would be able to oversee such an agency at least as much as any department of government, if not moreso, because it is small, and has one single objective.