This article is taken from the April 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issues for just £10.

In my column for The Critic last month, I argued that the post of attorney general should no longer be held by a party politician. After I had filed my piece but before it was published, the House of Lords constitution committee said it would consider that very question as part of a wide-ranging inquiry.

One hopes that ministers would eventually see sense

The attorney general for England and Wales is one of the UK government’s three law officers. The solicitor general acts as the attorney’s deputy. The third law officer is the advocate general for Scotland. The attorney general also holds the separate office of advocate general for Northern Ireland.

“Is it appropriate or helpful,” the Lords committee wants to know, “for the law officers, as government legal advisers, to be politicians serving in government?”

It may be helpful for ministers — but only if they think they will get better legal advice from insiders committed to their policies than from robust, independent lawyers. Law officers who tell prime ministers what they don’t want to hear tend not to last very long these days.

The next question in the committee’s call for evidence is more interesting. “Would independent law officers command the same authority as government ministers or would they risk being sidelined by government?”

In referring to independent law officers, I think the committee is envisaging that the post of attorney general should be held by a senior public official. I suggested last month that the job could go to the civil servant who heads what’s now called the government legal profession. But it could just as effectively be made a free-standing appointment, like director of public prosecutions.

Fortunately, no independent lawyer would command as little authority as some recent law officers. There would indeed be a risk of independent lawyers being sidelined, at least to begin with. But one hopes that ministers would eventually see sense.

“Do the law officers need to be members of either the House of Commons or House of Lords,” the committee asks, “in order to be accountable to parliament?” Clearly not.

Most public servants are accountable to parliament only through their government departments. Responsibility for the independent law officers, and the prosecutors they currently “superintend”, would be transferred to the lord chancellor.
That role is also being examined by the Lords constitution committee. Unlike the attorney general’s post, the lord chancellor’s responsibilities were reformed less than 20 years ago. The committee asks whether those changes have been successful.

Such politicians exercise self-restraint, respecting the unwritten rules

In a word, no. It was becoming increasingly unacceptable for a senior cabinet minister with major spending responsibilities to sit in the UK’s highest court as its most senior judge while also managing debates in parliament as speaker of the House of Lords. But, in separating those three roles, parliament agreed that the lord chancellor should become just another cabinet minister with no particular seniority.

Since 2012, the post has been held variously by an inexperienced politician on the way up, an over-promoted minister on the way down, a couple of high-flyers whose talents were soon needed elsewhere and two well-meaning lawyers who were denied the opportunity to make much of a difference.

Dominic Raab, the current holder, revels in the title of deputy prime minister, showing his failure to recognise that the government’s link to the judiciary needs to be someone slightly above the political fray.

The committee asks whether it is “now more difficult for lord chancellors, with their more overtly political position as secretary of state for justice, to carry out their duty in relation to ensuring respect for the rule of law across government”. Although peers are expecting respondents to agree, I’m not so sure.

A senior member of the cabinet in the Commons may be better placed to ensure respect for the rule of law
than a semi-detached minister in the House of Lords. But some lord chancellors over the past 20 years have shown little understanding of this responsibility.

Is further reform necessary? Certainly. First, we should divest the lord chancellor of responsibility for prisons and return that department to the Home Office. Bringing the two together was not entirely daft. It meant that when the prisons were full to breaking point the lord chancellor could slow down the rate of imprisonment by deliberately increasing delays in the criminal courts. But it also means that funding the courts takes a back seat to keeping a lid on the prisons.

As peers suggest, it would certainly be better for the lord chancellor to have a legal or constitutional background. But there is now little prospect that the posts of lord chancellor and attorney general will again be held by politicians who understand the “good chaps” theory of government popularised by Peter Hennessy.

Such politicians exercise self-restraint, respecting the unwritten rules even when these operate to ministers’ short-term disadvantage. These days, they are no longer welcome in government.