In the Media

Attorney-General comes off the bench

PUBLISHED July 10, 2006

Is the role of the law officer coming out of the shadows and becoming a Minister of Justice? Asks Jon Robins

Taking political pot-shots at the judiciary over the wisdom of their rulings was the equivalent of an ?open goal?, said the former Lord Chief Justice, Lord Woolf, last month. The case of Craig Sweeney brought into focus the role of the Attorney-General and Lord Chancellor, and their contribution in protecting judges from political point-scoring.

The controversy started when Home Secretary John Reid said he would be writing to the Attorney-General to ask him to consider referring the sentence to the Court of Appeal as ?unduly lenient?. A clearly irked Lord Goldsmith made it known that he was unhappy that a member of the government publicly referred the case for his attention. The Attorney-General is supposed to be independent of cabinet when deciding which ?unduly lenient? cases are suitable for referral to the appeal judges. The new home secretary?s intervention may have prejudiced any possible appeal.

The Lord Chancellor, Lord Falconer, spoke out in defence of the role of judges and took the new legal aid minister Vera Baird QC to task after she criticised the judge. Following ?helpful discussions at the weekend?, Ms Baird made a career-saving apology.

Section 3 of the Constitutional Reform Act 2005, which came into force in April, promises that the ?Lord Chancellor, other ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary?. Lord Falconer certainly lived up to his statutory responsibility. ?I am absolutely sure the problem is not with the judges, it is with the system overall,? he said. ?The judge in that case was just as concerned as everybody else that it should be properly dealt with.?

Law Society President Kevin Martin welcomes the fact that legislation has bolstered the authority of the bench from attacks. ?The Lord Chancellor has a crucial role to play in ensuring the independence of the judiciary and defending the rule of law. That law is now enshrined in statute,? he says. ?To carry out these vital functions effectively, the Lord Chancellor must actively assert the importance of respect for the role of the judiciary, even where individual judicial decisions may be unwelcome to ministerial colleagues, and must stand up to ministers whose actions might threaten or undermine judicial independence or the rule of law.? He adds that he welcomes Lord Falconer?s recent statements.

The Act has brought about a significant shift in the role of the Lord Chancellor. He is no longer head of the judiciary ? that role passed to the Lord Chief Justice, with a concordat dividing functions between them as part of a much clearer separation of powers. As of this month, the Lord Chancellor also loses the job as speaker of the Lords.

Speaking at St Paul Travelers? annual On Risk conference last month, the shadow Attorney-General Dominic Grieve predicted that with this diminishing status, the post of Lord Chancellor ? which is combined with that of Secretary of State for Constitutional Affairs ? could end up being that of a junior minister in the House of Commons.

Of course, the government backed down on plans to abolish the post, but the Constitutional Reform Act makes provision at section 2 for the Lord Chancellor not being a lawyer ? he must be ?qualified by experience?. While it can be as a lawyer (either practising or academic), that experience can also be as a minister, MP or peer. A final catch-all is ?other experience that the Prime Minister considers relevant?.

Fears of an agenda to reduce the post still further were sparked by the Legal Services Bill, published last month, which refers to the Secretary of State for Constitutional Affairs exercising powers, not the Lord Chancellor.

So could we see David Blunkett make a comeback as the next Lord Chancellor, as has been suggested from time to time? Unlikely but not technically impossible, reckons Roger Smith, director of the law reform and human rights organisation Justice. ?Something like that could happen,? he says. ?But it would be extremely difficult to be a secretary of state who had the confidence of the judiciary, and not be a lawyer. Charles Falconer just about has their confidence. The government would be ill-advised to appoint someone who didn?t have the confidence of the judiciary given the statutory duty and the politics of it.?

But while the Lord Chancellor may be waning, Mr Grieve suggested that the Attorney-General may be waxing. ?It?s becoming pretty clear that the role of the law officers is changing,? he said ? and into something akin to a minister of justice. He said the Attorney-General is becoming more involved with the Home Office in the formulation of criminal justice policy.

With this and the chaos at the Home Office the age-old debate as to whether there should be a ministry of justice with responsibility for all aspects of legal affairs has reopened. Mr Smith reckons that the creation of the Department for Constitutional Affairs (DCA) in 2003 was ?a missed opportunity?. He says: ?We had all expected a ministry of justice and I personally have argued for that for 20 years. The problem for the DCA is that it has been infected with the Home Office problem of having just too much to do.?

The Lord Chancellor spends too much time on issues such as electoral law reform which means that the ?two core responsibilities? of legal aid and the justice system are ?short-changed?, he argues. ?Justice is sufficiently important to have its own department.?

Chancery Lane is unconcerned about the rebadging of responsibilities. ?What ministers are called doesn?t matter much,? says Mr Martin. ?What matters is the coherence of the range of responsibilities they hold. The Law Society has long argued that responsibility for criminal procedure, which is all about ensuring trials are fair, should be transferred from the Home Office to the DCA. That remains our view.?

Jon Robins is a freelance journalist