ROBERT BUCKLAND QC MP
INNER TEMPLE LECTURE 18th FEBRUARY 2019
Master Treasurer, fellow Benchers, members and guests, it is more than a little unnerving to be addressing you from this lectern tonight, as the last time I did this was nigh on thirty years ago as a law undergraduate from Durham competing in the Final of the Inn Intervarsity Debating competition, which I did on two occasions with some success! I have been a member of this Inn for nearly thirty-two years, and well remember and appreciate the support given to me and other students by the Benchers of the day, some of whom are still with us.
I regard it as a particular honour to have been included in this lecture series. I wasn’t quite “press ganged”; rather, I made my usual mistake of saying “yes”, which, as my wife and family will tell you, has been a serial weakness of mine throughout my life and probably led me into public service in the first place.
For those of you who were hoping for a John Julius Norwich chronological and exhaustive tour of the Law Officers a la his rather wonderful “History of the Popes”, you will be in for a disappointment. I thought that it would be more profitable to identify some key themes and weave some, I hope entertaining, historical examples, into them. Above all, I want to be leave you with a sense of what the Law Officers actually do, what they represent and what the future may hold for them. Having now served as SG for nearly five years, I am in clear danger of becoming the institutional memory of my department, but the first and foremost point I wish to make is about the excellent quality of the civil servants in our small but perfectly formed office. Thirty-nine. Not the number of steps to my office, which recently were subjected to exponential reduction as we moved from the eight-storey behemoth of 20 Victoria Street to the more compact first and second floor of the Victorian Gothic splendour of The Sanctuary, nestling in the shadow of the west front of Westminster Abbey, but the number of lawyers and non-legal private secretaries in the Office. Small, as I said, but perfectly formed. The team undergoes pretty regular refreshment, but we are lucky to be perceived as a “destination of choice” for the talented and the energetic, and I never fail to be impressed by the quality of the support both the AG and I receive.
My team, who spend their time either working with us in The Sanctuary or our rooms in the Houses of Parliament, situated just off Central Lobby and as near to the Lords as the Commons, provide me with good advice, but ultimately the decisions made are those for the Law Officers alone. They will not always accord with the advice given, I can tell you. I am very happy to report that in my own personal experience. Modesty forbids me from saying any more about that, but I haven’t yet been proved wrong.
I am also profoundly grateful to Treasury Counsel who, with swiftness and great skill, provide both the Attorney and me with comprehensive and authoritative advice week in, week out.
What, then, are the themes I wish to address: firstly, the role of the Law Officers with regard to Parliament, secondly, the evolution of our role in Government and finally the current duties of the Law Officers.
THE LAW OFFICERS AND PARLIAMENT
Her Majesty’s Government has two Law Officers of England and Wales: the Attorney General and his effective deputy, the Solicitor General. For clarity’s sake, I should say that when I talk about the Attorney General, I am also speaking about the Solicitor General, because the two have essentially become one since the Law Officer Act 1997. Pursuant to that Act, any Law Officer function exercised by the Solicitor General is treated as if it were done by the Attorney General. Prior to that, the SG could carry out the AG’s duties, but there had to be specific permission for this to be done in each instance, which was somewhat burdensome.
Together, the Attorney and I have a multitude of functions: we provide legal advice to the government; we superintend several departments, and we act as guardians of the rule of law and the public interest, which is an aspect of our role that encompasses multiple functions in itself. Since the formal devolution of justice powers to Northern Ireland in 2010, the England and Wales LOs are also the UK Government Law officers in Northern Ireland, namely the office of the Advocate General, exercising functions there too.
The third UK Government Law Officer is the Advocate General for Scotland, currently the Rt Hon the Lord Keen of Elie QC. He advises the Westminster government on Scots law, European Human Rights Convention issues and constitutional matters.
To complete the UK Law Officer family, the Northern Ireland Government has its own Attorney General, John Larkin, and the Welsh Government is served by the Counsel General, currently Jeremy Miles AM. These offices are similar to those of Attorney and Solicitor General, although not all of their powers are the same.
Due to their medieval origins, the offices of Attorney and Solicitor General are quite constitutionally peculiar. So peculiar are they that when a Prime Minister resigns along with all their Ministers, only the Law Officers plus some of the senior whips in both Houses who hold titles within the Royal Household, remain in office. For about an hour in July 2016, about seven of us formed the Government of the country with the Queen as our Head. I have to admit that I was sorely tempted to test the limits of our constitution, by the time I had plucked up the courage, a new PM had already been appointed and we were in the throes of a reshuffle. Government reshuffles are strange things. They are pretty traumatic for backbench MPs, but even worse for serving Ministers, I can tell you.
The office of Attorney General is one of the oldest in our constitution. Most historians agree that the office of Attorney General was foreshadowed by the appointment of Lawrence del Brok in around 1247 to “sue the King’s affairs of his pleas before him”.
He attended the House of Lords to give legal advice and conducted litigation on the King’s behalf. His briefs ranged from recovering rents and land to investigating homicides. For meeting this manifold assortment of duties, he was remunerated to the tune of £20 a year, barely sufficient nowadays to have one’s tapestry restored or ox yoke varnished.
Brok’s tenure cast a rough mould for the office of Attorney General. However, it appears that the practice of appointing a single attornatus Regis to oversee the King’s legal affairs was in abeyance for the fourteenth century.
Instead, numerous King’s attorneys provided legal services to the sovereign until William Lodington regained general supervision over the King’s legal affairs in 1399. The title Attorney General was first used in 1461 when John Herbert was described in the letters patent of his appointment as attornatus generalis.
Also in 1461, Richard Fowler was appointed King’s Solicitor in all “matters, pleas, suits and quarrels affecting us within our realm of England”. Fowler’s appointment is recognised as the precursor to Solicitor General, although the title of Solicitor General was not used until 1515 to describe the authority vested in John Fort.
In the early days, the Attorney General was exclusively a servant of the Sovereign and occupied positions of prestige in the hierarchy of state officials. During the reign of Henry VIII, the House of Lords frequently issued writs of attendance summoning the Attorney and Solicitor to advise on points of law and conduct trials.
They had no responsibility for the Upper House’s determinations. Their principal tasks were to officiate as legal advisers and act as a go-between the two Houses of Parliament, carrying bills and messages from the Lords to the Commons and drafting, framing and amending Bills during their passage through Parliament.
As the Commons grew in constitutional importance throughout the sixteenth century, members there remained suspicious of the Attorney, a servant of the Crown and the Lords.
It was actually the Solicitor General who first moved from the Lords to the Commons. In 1566, then Solicitor General, Richard Onslow, was elected burgess of Steyning in Sussex.
Queen Elizabeth I, eager to have Onslow made Speaker of the Commons, despatched the Comptroller of Her Majesty’s Household to invite MPs to permit Mr Onslow to take his seat, notwithstanding his writ of attendance in the Upper House.
The Committee reached a compromise that “Mr Attorney-General Bacon remain in the House for this Parliament, but never any Attorney General to serve in the Lower House in future”. This lasted until 1670.
With their place in the Commons relatively settled, the force of the Lords’ writ was vitiated, and occasional obedience to it was viewed as a quite injurious snub by members of the Lower House.
This is illustrated by an incident that led to the impeachment of an erstwhile member of this very Inn, Sir Edward Herbert.
In 1642, amid escalating tension that characterised the formative years of the Long Parliament, Charles I ordered Mr Attorney Herbert to repair to the Upper House to charge Lord Kimbolton and several prominent Commons members with high treason. They had allegedly incited a Scottish invasion and stirred up a London mob against the King.
To his surprise, Herbert quickly found himself in the position of person accused when the Commons impeached him for breaching the Lower House’s privileges.
Again, in 1692, Attorney General John Somers was chairing a Committee of the Whole House when he was summoned by the Lords to advise on the case of Lord Banbury, who, having been arraigned on a charge of murder, was pleading his peerage. Mr Attorney Somers adjourned the Committee and went to the Lords.
His actions greatly offended members of the Commons, and an undue delay in appearing in the Upper House irritated the Lords.
Realising that it would be prudent to please one master than none, successive Law Officers ceased responding to the Upper House’s writ at the turn of the eighteenth century.
They continued, however, to act as counsel before the Lords rather than in an advisory capacity. A notable example is from 1935 when the Attorney General Sir Thomas Inskip, the Solicitor General and two Treasury Counsel prosecuted Lord de Clifford, who had been indicted for manslaughter following a road traffic collision. This was the last instance of a peer exercising his right to be tried before the House of Lords. Perhaps the most memorable Trial by his peers was that of the scheming mass murderer Louis D’Ascoyne Mazzini, 10th Duke of Chalfont, played by Denis Price in the 1949 Ealing Comedy “Kind Hearts and Coronets”, whose House of Lords murder trial conviction “upon mine honour” was overturned after a successful appeal just moments before he was due to be hanged, and who when released went and left his rather incriminating memoirs in his prison cell. But I digress.
As legal advisers to the Crown and government, Law-Officer time has historically been consumed mostly with tendering advice on proposed government policy and legislation.
It is not possible to comment on individual pieces of advice because of the Law Officers’ Convention, which protects legal privilege between the Law Officers and the government in the same way as between lawyer and client.
Much of the day-to-day drafting and amending of government proposals is and has for some time been undertaken by lawyers of the government legal service, who are attached to departments.
Yet, if one looks at the volume of legislation that is created in a given parliamentary session and presumes that a Law Officer has advised at least on its preparation for passage through Parliament, then that may give you an idea of the time spent on the government’s parliamentary business.
That is not to say that the Law Officers are perennially speaking in the House about each individual Bill under consideration. Indeed, the participation of Law Officers in Commons debates was grindingly slow to develop.
Sir Frederick Pollock, Attorney General in the 1830s and 1840s spoke on a paucity of occasions, and cumbersome and legally complex legislation was sometimes passed without a Law Officer being called to answer questions about it.
Over time, Law Officers’ participation in debates became more regular and has fluctuated depending on their personalities and the circumstances.
Mr Gladstone, during his incumbency as Chancellor of the Exchequer, eulogised the support of the then Solicitor General, Sir Richard Bechell, when he wrote to him in 1855 about the Succession Duty Bill of 1853.
Gladstone declaimed that “the memory of the Succession Duty Bill is to me something like what Inkerman may be to a private of the Guards: You were the sergeant from whom I got my drill and whose hand and voice carried me through”.
To give a flavour of the frequency with which Law Officers were required to manage legislation of gravity, Sir Rufus Isaacs, a prodigious speaker in the House, guided the Parliament Act 1911, the Official Secrets Act 1911 and the Government of Ireland Act 1914 through Parliament.
Sir Geoffrey Howe, who was appointed Solicitor in 1970, spent much of time dealing with legislation in the Commons. He is best remembered for taking the European Communities Bill through the House prior to our accession to membership, but he also took the Industrial Relations Bill, which was an extremely controversial piece of legislation, through its Commons stages. Not long before he died, Lord Howe told me that being SG was the happiest time he had in Government.
More recently, you may have noticed a familiar face contributing repeatedly from the front bench during 2017 and then last year when the European Union (Withdrawal) Bill was being scrutinised by the Commons. This is the fourth Bill I have helped through Parliament; the Investigatory Powers Act 2016 was another notable piece of legislation too.
Further examples of Law Officers participating in the House’s proceedings are scattered throughout Hansard, although much of a Law Officers’ work goes on behind the scenes in the provision of advice. We are ex officio members of the Commons Privileges Committee, and can be called upon to give advice and support in particular cases. Our historic role as legal advisers to Parliament has been somewhat supplanted by the Clerks and Speaker’s Counsel, it has to be said. On very rare occasions in recent history have the Law Officers provided impartial advice to the House, which was the purpose of their medieval writ to the Lords.
The last examples date from the early 1980s when the Attorneys General gave non-partisan advice to the House on picketing. The increasing sense of conflict between the Law Officers’ role as advisers to Parliament and their role in Government has contributed to this.
It is important to note that when Law Officers speak in the House, it is chiefly as Members of Parliament and the Government using their special competence and authority to deal with legal issues that arise in interpreting the provisions of a new measure. We answer questions every six weeks or so, just as every other Minister does, on matters relevant to our brief, such as the CPS, SFO and Government Legal Department. Most recently, the Attorney made a Statement and answered questions about his advice on the EU Withdrawal Agreement, although I have to say that precious few of the questions asked actually related to the detailed substance of his letter to the Prime Minister.
THE LAW OFFICERS AND GOVERNMENT
It has not historically been the norm for Law Officers to receive a standing invitation to Cabinet. This is not an insult to the Law Officers’ status. Rather, it is necessary to ensure that our ability to remain detached and give independent legal advice is not hampered by our attachment to any policy that we may have had a hand in devising.
Some exceptions to the norm occurred in the early twentieth century. In 1912 Sir Rufus Isaacs became the first Attorney General to hold membership of Cabinet.
This probably occurred because Prime Minister Asquith wanted to assuage Sir Rufus who felt aggrieved at being passed over for the position of Lord Chancellor.
When FE Smith was re-appointed Attorney General in 1919, he reacted strongly to the suggestion that his position as Cabinet Minister would be downgraded. He reportedly informed Prime Minister Lloyd George that he would rather return to private practice than lose his Cabinet seat. His ultimatum clearly worked, because he was offered the Lord Chancellorship.
The Attorney General’s Cabinet rank was permanently ended in 1928 because the perceived diminution of the Attorney’s impartiality and independence had come in for heavy criticism in the House and among legal professionals.
Nowadays the Attorney General is regularly apprised of relevant Cabinet proposals, although Law Officers only have a voice when there are legal and constitutional issues at stake.
Another function that historically occupied much of the Law Officers’ time and energy was the conduct of litigation, primarily criminal prosecutions, on the Crown’s behalf, except on one notable occasion, when a prosecution was led against the Crown by Oliver Cromwell’s Solicitor General, Sir John Cook.
Mr Solicitor Cook led the prosecution of King Charles I and was rewarded with execution for high treason and regicide after the Restoration. He is thus far the only Law Officer known to have been hanged, drawn and quartered. So far.
Cook should be regarded as rather a courageous man, because his predecessor, Edmund Prideaux, who had only been appointed Solicitor General the year previously, had baulked at the prospect of bringing an indictment against the King and resigned. Prideaux really dodged the bullet, because in April 1649, only four months after the regicide, he was appointed as Attorney General and served the Commonwealth for ten years before his death in 1659.
The reputation acquired by some Law Officers in behaving irascibly and unscrupulously is one that has been documented.
Sollom Emlyn’s State Trials of 1730 provides us with a vignette through which to view such behaviour and the consequent nadir of public esteem for the Law Officers. Emlyn roundly condemns these Bloodhounds of the Crown “who with rude and boisterous language abuse and revile the unfortunate prisoner”, and “who by force or stratagem endeavour to disable him from making his Defence”.
He may have had in mind Richard Rich, Solicitor General from 1533-6. Rich, while assisting the Attorney General, Sir Christopher Hayes, in the trials of the Bishop of Rochester and Sir Thomas More for treason, entered the witness box and gave evidence of admissions made by the accused in the course of friendly conversation. The accused were condemned to death and beheaded.
Even Sir Edward Coke, former Inner Temple member and an incisive jurisprudential mind, famously browbeat Sir Walter Raleigh at his 1603 trial for complicity in a plot to place Lady Stuart on the throne. Sir Edward harangued Raleigh, exclaiming amidst a tirade of vitriol “thou art a monster; thou hast an English face, but a Spanish heart” and calling Raleigh “the most vile and execrable Traitor that ever lived”.
Echoing these anecdotes, David Mallet’s Life of Francis Bacon portrays the offices of Attorney and Solicitor General in a pithy metaphor as “rocks upon which many aspiring lawyers have made shipwreck of their virtue and human nature”.
As time passed, the Law Officers observed higher standards of professional propriety when presenting cases, such that from 1720, it is reported that their rudeness and boisterousness of language have largely disappeared. Indeed, the appointment of Sir William Garrow as Solicitor General and then as Attorney in the administration of Lord Liverpool in the early 19th century was a tacit acknowledgement that his work in pioneering defence advocacy and the all-important Burden of Proof in what we now recognise as the criminal trial process was approved of.
Yet, the Law Officers’ role as public prosecutors remained susceptible to public disapprobation until the twentieth century as certain cases were perceived to be tainted with political interference.
Nowadays, prosecutorial independence is safeguarded as the Crown Prosecution Service conducts the majority of serious criminal cases outwith the ambit of any ministerial meddling.
The issue of politicised prosecutions emerged again in 1793. Sir John Scott, later Lord Eldon, whose portrait is behind my desk in the Commons, had succeeded Sir Archibald Macdonald to the office of Attorney General. Sir Archibald had commenced a prosecution against Thomas Paine in 1792 on a charge of sedition for his publication of The Rights of Man.
On assuming office Sir John had to decide whether to continue a similar prosecution for seditious words allegedly published by an attorney named John Frost.
Thomas Erskine, who later became Lord Chancellor, represented Frost at trial, and intimated that Mr Attorney Scott had merely continued the prosecution because it had devolved upon him by his predecessor. Sir John protested and gave a rousing rebuke to Erskine, during which he declaimed that “no man ought to be in the office who would hesitate to say, ‘my conscience must direct me, your judgment shall not direct me’”.
Then in 1794, during the Treason Trials, which arose from an alleged incitement of radicals to levy war against the King, Sir John unsuccessfully prosecuted Thomas Hardy, John Tooke and John Thelwall. Upon their acquittal, erroneous rumours circulated that the Attorney General had recommended a prosecution for the lesser charge of sedition but had been overruled by the Cabinet.
Although in both cases the rumours were uncorroborated and were probably baseless, they illustrate how, by occupying a dual role as government minister and public prosecutor, the Law Officers were vulnerable to obloquy arising from such accusations whether true or not.
One particularly controversial mechanism for commencing criminal prosecutions was the ex officio information. An ex officio information was a criminal information that the Attorney General could file without leave of the court and without the need for presentment or indictment for misdemeanours of a lesser degree than felony.
Blackstone’s states their use was confined to “such enormous misdemeanours as peculiarly tend to disturb or endanger the Queen’s government”, namely sedition, riots and libels on the Crown’s ministers.
In 1831, Mr Attorney Charles Denman was called upon to prosecute agrarian rioters from the south west of England. While investigating, Mr Attorney Denman observed that the rioters had been influenced by the writings of pamphleteer William Cobbett. He duly filed an ex officio information against Cobbett for criminal libel.
By the time of Cobbett’s trial, his denunciation of the Whigs had earned him immense popularity. Unable to agree on a verdict, the jury was discharged and the Annual Register of 1831 records that Mr Attorney Denman gladly entered a nolle prosequi. More of this power later.
At the turn of the twentieth century, there was an obvious acknowledgement that politics and prosecutions ought to be disassociated.
In 1903 Prime Minister Balfour stated that “it was not in the power of government to direct the Attorney General to direct a prosecution” and that the Attorney General, when making such considerations ought to act “in the interest of all”.
Nevertheless, the use of ex officio informations to commence criminal prosecutions persisted. In 1911, the Attorney General, Sir Rufus Isaacs, filed an ex officio information against journalist Edward Mylius for publishing that George V was a bigamist. This was the last occasion on which the Attorney General used his prerogative to file an ex officio information before the instrument met its demise with the Criminal Law Act 1967.
It was really the Campbell case of 1924 that brought the problem of the Attorney General’s Janus-faced nature into sharp focus.
John Ross Campbell was the acting editor of the Workers Weekly, the putative organ of the Communist Party of Great Britain. In July 1924 the Workers Weekly published an article addressed to the “fighting forces”, in which soldiers were exhorted not to turn their guns on fellow workers; to “smash capitalism forever” and “turn their weapons on their oppressors".
The day following publication, the Attorney General, Sir Patrick Hastings, consented to a prosecution under the Incitement to Mutiny Act 1797. Reportedly, while Sir Patrick and the Director for Public Prosecutions discussed the case, significant public interest factors, such as the likelihood of the erosion of military discipline, went unmentioned.
Members of the Commons were indignant about what was, in their view, a prosecution for an article simply discouraging soldiers from allowing themselves to be used in industrial disputes. The temperature rose yet further when it was disclosed that Campbell, a decorated First World War veteran that had lost both feet in action, had been working as editor only temporarily.
In August, Prime Minister MacDonald summoned the Attorney to review the Campbell case papers. The Prime Minister enjoined Sir Patrick to discontinue the prosecution if certain undertakings could be obtained from Campbell, an opinion reinforced by the Cabinet later that day.
On 13 August Treasury Counsel Humphrey Travers attended Bow Street magistrates’ court and informed them that, after it had “been represented that the object and intention of the article… was not an endeavour to induce men” to insurrection, the Director of Public Prosecutions withdrew the prosecution.
MPs, the former Attorney General FE Smith (now Lord Birkenhead) began to speculate as to who had made such “representations”, it being wholly unconstitutional for the executive exert pressure on the Attorney General for political motives.
A censure motion was tabled in the Commons and the issue became a matter of confidence for the first Labour government. Ramsay MacDonald vacillated in his recollection of events during the Commons debate but insinuated that the Attorney had merely sought the Cabinet’s guidance. This was rejected by the House, and the first Labour administration was ousted.
When Stanley Baldwin assumed the mantle of Prime Minister he revealed the express instruction from MacDonald’s Cabinet, made on 6 August 1924, which stated that no political prosecutions should be directed by the Attorney General without the sanction of Cabinet.
Successive governments distanced themselves from this edict. By 1951, then Attorney General, Sir Hartley Shawcross, defined the principles guiding prosecutions in terms familiar to prosecutors today when he said “there is no greater nonsense … than the suggestion that in all cases the Attorney General ought to decide to prosecute merely because he thinks there is what the lawyers would call ‘a case’”, before saying that “the Attorney-General and the Director of Public Prosecutions only intervene to direct a prosecution when they consider it in the public interest”.
Yet, the position of the Attorney General vis-à-vis public prosecutions was still not wholly comfortable. In 1956, Soviet discus thrower Nina Ponomoreva was caught shoplifting from British department stores in what one newspaper dubbed “The Case of the Slipped Discus”.
The then Attorney General, Sir Reginald Manningham-Buller, sought advice from the Foreign Secretary before prosecuting. There was no question in this case that Sir Reginald had acted unconstitutionally, but it highlights the difficult position of a Law Officer in acting and being seen to act justly.
No discussion of the Law Officers’ public prosecutorial function would be complete without a mention of Mr Attorney Manningham Buller’s prosecution of Dr John Bodkin Adams in 1957.
Dr Adams was a general practitioner in Sussex. Several dozen of his patients had died in suspicious circumstances having made Dr Adams a beneficiary under their wills.
Dr Adams was charged with murder, but this being a period when only one count of murder could be indicted at one time, it was envisaged that the Crown would present each case consecutively in descending order of evidential strength.
In 1957, Mr Attorney Manningham-Buller prosecuted Dr Adams for the murder by lethal injection of Edith Morrell, presumably the Crown’s strongest case. The trial is the subject of what is still the most unusual kind of book, written about a criminal trial by the judge who presided over it, albeit many years later. Lord Devlin’s “Easing The Passing”, is a must-read for anyone who is interested in or who conducts criminal litigation, and presents a, shall we say, less than hagiographical picture of the Attorney General in his preparation and presentation of the case.
The prosecution’s case fell apart when the defence admitted into evidence treatment records that the police had been unable to recover and when expert witnesses for the prosecution spontaneously gave contradictory evidence.
The jury acquitted Dr Adams after 46 minutes. It was widely expected that the Attorney General would continue with the second murder indictment or offer no evidence.
To Lord Devlin’s astonishment, the Attorney instead entered a nolle prosequi. A nolle prosequi is a formal withdrawal of the Queen’s consent for a prosecution; they are normally made on compassionate or public interest grounds, not because the prosecution has a weak case. This power still exists today, although it is seldom exercised and only in particular cases where the circumstances are clear and no alternative means of dealing with proceedings is apparent.
Manningham-Buller asserted that he had done this because Adams could not be guaranteed a fair trial on the second indictment given the frenzied media reaction to the first verdict.
Lord Devlin, however, considered this explanation as fanciful and disparaged the move as an abuse of process designed to hide deficiencies in the prosecution’s second case. Naturally, it left Dr Adams under suspicion as a mass murderer.
The case resulted in the shortest possible answer to a parliamentary question. When asked whether he would institute an inquiry into the prosecution of Dr Adams, the Attorney General replied simply “no”.
To add some balance to the foregoing criticism of Manningham-Buller’s courtroom shortcomings, (his nickname was Sir Reginald Bullying Manner) he did maintain a principled stance during the 1956 Suez crisis, when a triumvirate of nations attacked Egypt following its nationalisation of the Suez Canal.
Confidential documents released in 2006 relate how he and then Solicitor General, Harry Hylton-Foster had warned Prime Minister Eden and the Foreign Secretary repeatedly that there was no legal justification for the attack.
I shall pause briefly at this stage to build on the allusion to both Sir Hartley Shawcross and international affairs, because it is an opportunity to speak about the rare occurrences of Law Officers appearing before international tribunals.
As Attorney General, Sir Hartley Shawcross led United Kingdom’s prosecutorial team at the Nuremberg trials of 22 senior Nazi officials. Practically speaking, he made just the opening and closing speeches, but they were speeches widely lauded for their lack of moralistic and crusading oratory, speeches that focussed instead on the primacy of the international laws prohibiting aggression and criminal acts in the fog of war.
While condemning as pusillanimous the defence of superior orders he uttered the powerful adage that “there comes a point when a man must refuse to answer to his leader if he is also to answer to his own conscience.”
Ably assisting Sir Hartley was David Maxwell Fyfe, himself a former Attorney General, who conducted the day-to-day aspects of the case, including a famous cross-examination of Hermann Göring. Maxwell Fyfe, who was later Lord Chancellor, was subsequently instrumental in drafting the European Convention on Human Rights. Also acting as junior Counsel was Sir Elwyn Jones, my fellow Llanelli boy and Sosbanite and later AG and Lord Chancellor.
Law Officers present cases to international tribunals infrequently. In recent years, both the former Attorney General Dominic Grieve and I have both presented cases to the International Court of Justice regarding the UK’s dispute with Mauritius over sovereignty of the British Indian Overseas Territories.
Returning to historical developments in the Law Officers’ roles, it may surprise you to learn that until 1892 Law Officers were allowed to balance their manifold public duties with – often very lucrative – private practices.
Theretofore, a major perk of assuming a Law Officer role had been an enhanced professional reputation and a consequent enlargement of their private practices.
In the seventeenth century, Roger North, writing of his brother Sir Francis North, informs us that “when he was made Attorney-General, though his gains by his office were great, they were much greater by his practice; for that flowed in upon him like an orage”.
Naturally, this double life entailed admittedly rather self-inflicted travails, the extent of which was relayed in 1850 by Sir John Jervis to the Select Committee on Official Salaries when he said “anyone who has not held the office can have no conception of the labours of an Attorney General...I am kept officially in the House of Commons to two or three o’clock in the morning, sometimes, and I am obliged to be in court again at half-past nine the following morning”.
By the 1870s the Law Officers were effectively salaried ministers. An 1871 Treasury Minute records the salaries of the Attorney and Solicitor General as £7000 and £6000 respectively for non-contentious work, with ad hoc fees payable in addition to this for contentious government work.
According to the Bank of England’s inflation calculator, a seven-thousand-pound salary in 1871 equates to roughly £809,000 in today’s money. This might rather attenuate one’s sympathy for Mr Attorney Jervis’ crammed schedule.
Around this time, the Commons became increasingly vociferous in its calls for Law Officers to abandon private practice, whose precedence over their public duties was inhibiting their availability to opine on the legal effects of government measures in the House.
The death knell for this arrangement began to sound at the end of the nineteenth century and reached a crescendo with the case of Charles Parnell in 1892.
In 1887, The Times had published letters ostensibly signed by Charles Parnell, an Irish Nationalist leader in the Commons, condoning the murders of senior members of the British Government in Dublin’s Phoenix Park.
Parnell declined to bring libel proceedings against The Times, although a fellow Irish Party member, Hugh O’Donnell, brought a constructive libel claim against the newspaper.
The Attorney General of the day, Sir Richard Webster, defended The Times and Mr O’Donnell’s claim failed. Parnell continued to protest that the letters were forgeries, so a Statutory Commission was established to inquire into their veracity.
The Commission found the letters were forgeries, when, on the fiftieth day of the hearing, Richard Pigott, the journalist that had passed them to The Times, entered the witness box. After two days of cross-examination, Pigott confessed to having forged the letters himself.
Mr Attorney Webster, the Crown’s chief prosecutor and the guardian of the traditions and honour of the English Bar was publicly denigrated for woeful incompetence in failing to see Pigott’s unreliability.
Observing that it was not sustainable to permit Law Officers to represent private clients while meeting their public obligations, Prime Minister Gladstone prohibited Law Officers from engaging in private work in 1892.
The following year, the Law Officers were provided with their own department, having previously operated from their chambers supported
by just one or two clerks.
William Harcourt describes quite a mirthful scene precipitated by this irregular arrangement when he was appointed Solicitor General in 1873, writing “two cabs arrived filled with a number of miscellaneous old volumes, which were tumbled out into the street, and were ultimately brought up into my room”.
Among the volumes, he says, were “the most important and confidential papers, which in the Foreign Office would be treated with the greatest secrecy and would go about in red boxes in the custody of officials”, but between Law Officers “went from one set of chambers to another in open envelopes and were tumbled about from boy to boy”.
The new Law Officers Department was housed in the Royal Courts of Justice for some decades, but it has now evolved into the Attorney General’s Office of today, although I regularly return to the Royal Courts to conduct sentencing references and contempt cases in person.
Sir Francis Bacon described the role of Attorney General as “one of the painfulest places in the Kingdom”, a view echoed reflected in 1819 by JP Collier who wrote “of all the offices in the gift of the Crown, that of Attorney General is perhaps the least to be coveted; for … the person filling that place can scarcely avoid being the object of general dislike”.
With a plethora of political, public interest and professional obligations to meet, a Law Officer’s lot is to serve many masters and ensure that they undertake their duties assiduously in a manner that is and is perceived to be just. This can occasionally be treacherous terrain on which to operate.
Two examples illustrate my point, beginning with the Lynskey Inquiry of 1948. The tribunal was charged with investigating accusations of widespread corruption by certain ministers and government officials, who had allegedly exchanged money for licences and, in one case, the withdrawal of a prosecution.
Sir Hartley Shawcross, then Attorney General, was acutely aware of the hostility that could be directed at him should he take over the cross-examination of witnesses and the introduction of incriminating evidence against his own colleagues and friends.
Yet, he recognised that as guardian of the public interest, he was duty bound to do so lest the office appear inadequate to protect the public interest and the rule of law.
My second example is that of Sir John Hobson, which highlights how, unlike other ministers, the Law Officers remain subject to the ethical and professional codes of the Bar and the supervision of their professional associations.
Sir John was Attorney General in 1963 when Anthony Enahoro, a Nigerian pro-democracy activist found himself accused in Nigeria of treasonable felony.
Enahoro escaped to London, but Macmillan’s government refused to grant him political asylum and extradited him. The Commons voted to deport Enahoro in the belief that he would be allowed British counsel of his choice in Lagos. This was denied to him later by the Nigerian government.
Enahoro was convicted and sentenced to 15 years’ imprisonment. On May 27 1963, a motion was tabled in the Commons censuring the Home Secretary and by implication the Attorney General for failing to disclose that Enahoro’s British legal representatives would be barred from entering Nigeria.
The motion was rejected, but Sir John was nevertheless summoned before the Masters of Inner Temple to answer charges of unprofessional conduct. It was judged that the charges were unfounded and Sir John’s conduct was beyond reproach. Nonetheless, the episode demonstrates how the tricky position Law Officers can find themselves in by being accountable to many authorities.
THE LAW OFFICERS TODAY
I shall now examine how the Law Officers’ functions and duties today differ from those of bygone ages.
The Attorney and I continue to play a unique constitutional role, advising the government; superintending various legal public bodies; holding joint responsibility for criminal justice policy, and acting as guardians of the public interest and the rule of law.
The Law Officers now play almost no direct role in civil or criminal litigation. Instead, we superintend departments that do this work independently, namely the Crown Prosecution Service, Serious Fraud Office and the Government Legal Department.
Superintendence means that we are accountable to Parliament for performance of these departments. We achieve this by presenting annual reports to Parliament; answering written and oral questions, and correspondence from MPs.
We do not have operational control over departmental activity. Nor are we involved in decision making in individual cases. Each organisation has its own director that is responsible for the day-to-day running of the organisations.
The directors consult us on their objectives, strategic planning and high-level decision making. The Law Officers may occasionally issue their own guidance on specific matters.
We may also launch inquiries into the work of these departments. Last year, following disclosure failings in the criminal justice system, the Attorney General ordered a review that published its recommendations in November.
The days of the Attorney General directing public prosecutions are thankfully long behind us. Law Officers have for some time championed the independence of prosecutorial decision making
Our role as guardian of the public interest encompasses numerous discrete functions. I would expect that is has never been uncommon to hear experienced officials – and I dare say the odd Law Officer – to express surprise at having rediscovered some ancient common law function of the Attorney General.
The Law Officers retain some very rarely used functions related to ecclesiastical and royal matters, as well as some more frequently used functions regarding charities and the appointment of neutral advocates to give impartial advice on a particularly niche point of law should a court request.
Law Officers are required to consent to the prosecution of certain criminal offences. Why, you might ask, is our consent an occasional necessity when most decisions to prosecute are made independently of the Law Officers?
In 1972, the Home Office gave five reasons. First, it ensures consistency in prosecutions where the offence cannot be precisely defined and where the law may consequently go wider than the mischief aimed at.
Secondly, it prevents the law being brought into disrepute through vexatious private prosecutions.
Thirdly, it allows greater account to be taken of mitigating factors.
Fourth, it provides central control over the criminal law when it intrudes into areas that are particularly sensitive or controversial.
And finally, it enables prosecution decisions to take account of public policy or international issues, but not, as we saw earlier, to be directed by the executive.
The Law Officers also have a function pursuant to section 13 of the Coroners Act 1988. That provision gives us the power to make or permit an interested person to make an application to the High Court for an inquest or a fresh inquest into a person’s death.
The most high-profile use of this function occurred in 2012 when then Attorney General, Dominic Grieve, applied for a fresh inquest into the deaths of the 96 people who died at Hillsborough.
Another ancient vestige of the Law Officers’ public interest functions is in their reservation of the authority to bring proceedings for contempt of court, which is broadly defined as an act or omission calculated to interfere with the administration of justice.
Common examples of this branch of the law include breaches of court orders, the publication of information potentially prejudicial to a trial or deliberately making false statements subject to a statement of truth. A famous example of this was the “Spycatcher” case in the 1980s.
Perhaps the most high-profile contempt issue in which the Attorney General has been involved are the proceedings relating to Jon Venables and Robert Thompson, the murderers of James Bulger, whose identities are protected by a High Court injunction.
The Low Officers have played two roles here: acting as guardian of the public interest in proceedings regarding the injunction’s imposition and amendment, as well as bringing proceedings against those who breach its terms.
One of the busiest public interest functions of a Law Officer is the Unduly Lenient Sentence scheme, which was introduced exactly thirty years ago. The Law Officers have the power to refer a criminal sentence to the Court of Appeal if they consider it so low that no judge could reasonably consider it appropriate. The scheme applies to indictable only and some either way offences.
Last year over one thousand cases were drawn to officials’ attention at the Attorney General’s Office. Of those, the Law Officers referred 140 to the Court of Appeal and the Court of Appeal found 103 [KR1] of them to be unduly lenient.
Like Law Officers before us, our primary duty is to advise the government on potential legal issues arising from proposed policy and legislation. Our role in this regard has been neatly summarised by former Attorney General, Lord Mayhew who said:
“The Attorney General has a duty to ensure that the Queen and ministers who act in her name, or purport to act in her name, do act lawfully, because it his duty to help secure the rule of law, the principal requirement of which is that the government itself acts lawfully”.
The main medium through which we perform this duty is through our membership of Cabinet’s Parliamentary Business and Legislation Committee. The Committee determines what legislation should be included in the Government’s legislative programme in each parliamentary session and considers the readiness of each piece of legislation.
The Law Officers must agree that legislation meets the requirements of legal certainty before it is ready to be introduced. When legal issues are identified, the committee looks to us for advice on the implications of those issues and how best to mitigate them.
Departments must seek our consent if proposed legislation is to have any retrospective effects or if it is to be commenced early, by which I mean within two months of royal assent.
The Law Officers have a further role in relation to proposed legislation. When a Bill is introduced, the minister in charge of the Bill in each House is required by section 19 of the Human Rights Act 1998 to state that the Bill’s provisions are compatible with Convention rights.
If the Minister cannot provide that assurance, they must state that the government wishes the House to proceed nevertheless.
The Law Officers consider the legal analysis that departments are required to produce for the Cabinet Committee. This includes an analysis of the ECHR rights that are engaged by a Bill and an assessment of any interferences and justifications for them. The department demonstrates its human rights law reasoning with a view to satisfying the Law Officers, and so the committee and the government, that the route by which the department has come to the conclusion that the Bill is compatible is correct.
The Cabinet Manual enumerates many scenarios that may require Law Officer advice, but, in short, we are asked to advise on any issue concerning the legality, domestically or internationally, or constitutional propriety of proposed legislation and executive action.
The Law Officers’ Convention prevents us from divulging specific items of advice. The convention prevents the disclosure of information about, firstly, the existence, and secondly, the content of Law Officers’ advice outside government. It is vital to good government, and is part of the glue that ensures the indivisibility of collective decision making within Cabinet and Government. This convention recently came under attack as a result of an Humble Address motion passed by the Commons that required disclosure of the Attorney’s advice relating to Brexit, and in particular the legal effect of the Northern Irish Protocol in the Withdrawal Agreement, the so-called backstop. Both the Attorney and I thought that the Convention was something worth defending, and I did just that in the debate on the Humble Address before Christmas.
The outcome was a difficult one for the Government. The advice was published in response to a Contempt motion passed by the Commons. My good friend and predecessor Sir Edward Garnier once described the Law Officers to me as the submarines of Government, who only surface when something is up. At the moment, such is the turn of events that you may think we have no need of a periscope!
I shall finish by saying that, in spite of recent events, far from being the painfulest place in the Kingdom, as time goes by I continue to feel honoured to be one of Her Majesty’s Law Officers.