Constitutional Mix-Up
able to ask her to wear two hats. Can she be both, an “independent” legal adviser, speaking truth to power, as well as a partisan with collective responsibility for exercising power? Two House of Commons Select Committees have now concluded that she
cannot.Their inquiries fol- low a series of controversies at the heart of the Attorney General’s role, where public and political confidence in the Attorney’s independence was fatally undermined. Most strikingly, there remains a
shadow of doubt over the veracity of then Attorney General Lord Goldsmith’s advice to Mr Blair, over the legality of the war. Ms Elizabeth Wilmshurt, an eminent official in his office, resigned after nearly 30 years service. She was clear that the Attorney’s advice concerning the legality of military action had changed to suit the politics of the
day.There was a legal argument as to whether Security Council Resolution 1441 had the strength to mandate military action, since it declared only that “serious conse- quences” would result if Saddam Hussein would not disarm himself of weapons of mass
destruction.The original draft of the resolution had used the diplomatic phrase known for military action,“all means neces- sary”, but it had been excised since support in the Security Council could not be gained on that basis. It is for the lawyers to argue out whether the war was, in the end, legal or not, and it is in the nature of international law that the absence of a serious court in which to enforce it leaves the law more as a guide than as a set of
rules.Yet for Members of Parliament who were being asked to take the final decision on whether to engage in conflict or not, for the public and for troops on the ground, official, independent advice that the war would be legal was
important.They were denied it and instead saw a flurry of letters exchanged in the press from lawyers on each side of the argument. More recently, Lord Goldsmith again came under the spotlight when the Serious Fraud Office (SFO) determined to stop an investigation into alleged bribes paid by British Aerospace (BAE Systems) to secure a defence deal with Saudi
Arabia.The
Head of the SFO, Mr Robert Wardle, protested that he took his decision “independently” with “advice” from the Attorney General and Solicitor General. Mr Blair defended the move, telling BBC News, “Leave aside, the effect on thousands
of British jobs and billions worth of pounds for British industry. Leave that to one side. Our relationship with Saudi Arabia is vitally important for our coun- try, in terms of counter-terrorism…and that strategic interest comes first…My role as Prime Minister is to advise as to what is the best national interest, strategic inter- est of our country and I have absolutely no doubt at all that the right decision was taken in this regard... if we had allowed it go forward, we would have done immense damage to the interest of this country.” The decision came just weeks
after reports that Saudi Arabia had threatened to end defence contracts worth £10bn of British Aerospace in respect of 72 Eurofighter
jets.The issues of national security and inter- national relations were confused to conflate efforts to prevent terrorism and our trading relationship with Saudi
Arabia.There was an impres- sion that the political imperative to save jobs and money had without a doubt not been “left aside”; indeed a Downing Street spokesman said that it had been a “consideration” in the
decision.At the very least the ambiguous role of the Attorney General in this process reinforced the demand for greater clarity and transparency. Later, the Attorney General
could have been required to take an inherently political decision as to whether prosecutions should go ahead in the so-called “cash for hon- ours” scandal.A striking coincidence had come to light that almost any- one who had given or loaned a mil- lion pounds to the Labour Party seemed to land up in Britain’s sec- ond
Chamber.The House of Commons Constitutional Affairs Select Committee (hereafter: CAC) sought assurances from the then Lord Chancellor that the Attorney would not interfere in the case. When Lord Falconer did the same he was rebuffed by the Attorney. He stated that “no other Minister, how- ever distinguished or senior, has the ability to bind the Attorney General in how he exercises his role”.
The CAC ruling The CAC looked at all of these issues in detail for its July 2007 report, Constitutional Role of the Attorney General, and advocated fundamental reform to end “confusion about the overlap between the Attorney General’s position as the govern- ment’s chief legal adviser, his role as the superintendent of the prosecution services (an independent role), and his role in carrying out the “ministe- rial functions” in relation to criminal justice policy (a party political role). Their report was timely since Mr Blair made way for the new Prime Minister Rt Hon. Gordon Brown later that year, who made an announcement of “a new British constitutional settlement”.“The role of Attorney General which combines legal and ministerial functions needs to change,” he told MPs. In the way that is typical of the debate around British constitutional change, in due course Parliament was presented with a draft Constitutional Renewal Bill for scrutiny by a joint committee of MPs and Peers.I was asked to sit on it along with two Liberal Democrat colleagues.We took extensive evi- dence on issues as wide-ranging as what should be done with Parliament Square (a bit of green and large traffic gyratory opposite the Palace of Westminster) and the right for Prime Ministers to wage wars without par- liamentary approval. The committee’s proceedings and
its final report were largely disap- pointing, and strikingly conservative, despite the preponderance of Labour MPs and Peers appointed to sit on it. On the important matter of the Attorney General’s role, the commit- tee rejected the advice of the CAC, and of the Justice Committee, which published a report in similar terms about the Bill’s provisions in this area. Instead, the report took the line of the Attorney General Trades’ Union (retired branch). These former holders of the office – Conservative as well as Labour – unsurprisingly insisted that those who had done the job in the past had done so with great distinc- tion and that their mixed roles enabled much flexibility and empathy within government. It was essential, they argued, that arrangements remained largely the same.
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