Lord Goldsmith's time as Attorney-General highlighted the difficulties of trying to be both a lawyer and a politician, writes Polly Botsford


Lawyers often become politicians, but there are not many whose job description is to be both at the same time. The outgoing Attorney-General, Lord Goldsmith, who resigned just days before Tony Blair left office, did just that, bringing the inherent difficulties of doing the dual job to everybody’s attention.



Lord Goldsmith QC, who wore both hats for six years, is adamant that he acted as a lawyer first and a politician second. Certainly, his successes emerge out of his work as the former, whereas the controversies arise when he was the latter. But his legacy has been to demonstrate just how uncomfortable it is to wear a wig and have to stand at the despatch box.



Peter Goldsmith was born in Liverpool in 1950. At Cambridge he got a double first in law and was called to the bar in 1972, making silk in 1987. He has been chairman of the Bar Council and is a member of London commercial chambers, Fountain Court.



Appointed Attorney-General in June 2001, Lord Goldsmith was not a close friend of Tony Blair’s, unlike Lord Falconer (who was also at Fountain Court), but they had apparently met at a dinner. The Attorney-General resigned ostensibly because he has wanted to do so for a long time.



His tenure has coincided with an ‘eventful’ period (as he himself describes it). As a result, Lord Goldsmith has been pulled into the political arena, and it is for these acts that he is criticised.



As the government’s in-house law officer, he gave legal advice to the cabinet on a full range of issues. But it is the legal advice he gave on 17 March 2003 which is his political legacy. The actual advice was given ten days earlier, on 7 March, and was then subsequently ‘summarised’ on 17 March 2003. It was the summary which underpinned the government’s arguments on the legality of the Iraq war. The problem was that the 13-page advice he gave on 7 March 2003 was far less certain of the war’s legality. The public’s conclusion was that political expediency had washed over his legal independence – and his judgement.



One particularly critical assessment of his actions was by Lord Lester QC, the high-profile human rights campaigner and Liberal Democrat peer, who said back in 2005: ‘The so-called 17 March summary of his advice… does not represent his [original] advice because [it] was to the contrary. After being in the business for 40 years, I cannot recall a single example where I have given firm advice of this kind and then changed my mind in this way, except where there was some mistake or a client misled me, but otherwise it would be unheard of.’



There was a long-running debate over publication of his full advice, which moved even the likes of the senior law lord to intervene. Lord Bingham said: ‘There seems to me to be room to question whether the ordinary rules of client privilege, appropriate enough in other circumstances, should apply to a law officer’s opinion on the lawfulness of war; it is not unrealistic in my view to regard the public, those who are to fight and perhaps die, rather than the government, as the client.’



In more recent times, the political river has burst its legal banks over the BAE corruption investigation. The Attorney-General has what is known as superintendence of the Serious Fraud Office (SFO) and can halt an investigation if he believes it is contrary to the public interest. An investigation into alleged bribes made by BAE Systems to the Saudi government was stopped in its tracks. Though the decision was made by the director of the SFO – but in any case Lord Goldsmith said he agreed with it – again, the view has been that a political conclusion has been given to a legal argument.



Then in March 2007 there was Lord Goldsmith’s injunction against the BBC to suppress a report about the ‘cash-for-honours’ police investigation. Ironically, that came only days after the Gazette invited his office to respond to criticism from senior lawyers that Lord Goldsmith was not doing enough to censor potentially prejudicial media reporting ahead of criminal trials.



But it is as a lawyer that Lord Goldsmith’s achievements are strong, for instance in the transformation of the Crown Prosecution Service (CPS). Working with Sir Ken Macdonald QC, the Director of Public Prosecutions, he took the CPS from a ‘demoralised backroom service’ into a modern and visible institution. Lord Goldsmith believes that it is his greatest triumph. It is ‘the thing that I am proudest of... it is completely different now’, he says.



Sir Ken says: ‘During his six years in office, Lord Goldsmith has been a strong supporter of all our programmes of change... he and I worked closely together to put the CPS at the heart of criminal justice.’



The most fundamental change is that the CPS, rather than the police, now has control over what charges are to be brought against defendants. Rodney Warren, director of the Criminal Law Solicitors Association, says the police are taking a lot longer with their cases as a result, ‘but the process is more joined up – for the better’.



Another important initiative is to encourage the CPS to do its advocacy in-house, which ‘has raised the profile of the CPS within the system as a whole’, adds Mr Warren. However, there have been concerns over the growing role of non-lawyer caseworkers.



In human rights issues, Lord Goldsmith already had a track record, having been co-chairman of the International Bar Association’s human rights institute before joining the government. As Attorney-General, he has spoken publicly, and worked privately, on the most important issues in this area. He was the first member of government to speak out about the detention centre in Guantanamo Bay. In May 2006, he said: ‘It is time, in my view, that it should close.’ As Roger Smith, director of human rights group Justice, the law reform and human rights organisation, says: ‘Where Tony Blair was saying it was an anomaly, Lord Goldsmith was saying it was wrong.’ Behind the scenes, he played a part in the negotiations to return the British detainees held there.



And it was in his very last week of office, at a joint parliamentary committee on human rights, that Lord Goldsmith spoke in favour of an investigation into alleged torture techniques being used by British soldiers in Iraq.



It is also as a lawyer that he has displayed consideration for the views of those in his own profession. Mr Warren explains: ‘I felt he was at pains to involve the legal profession and consult them.’ This respect had a real manifestation. ‘He instigated quarterly meetings with the Law Society which has been highly beneficial.’ (And, as Attorney-General, he was a ex-officio member of the Bar Council.)



Other notable achievements included the creation of the Revenue & Customs Prosecution Office, his decision last year that recruitment of senior Treasury counsel would, for the first time, be carried out by open competition, and the thorough review his office carried out into potential miscarriages of justice in the wake of the Sally Clark and Angela Cannings cases. Far more controversial were the repeated attempts to remove juries in fraud trials, as well as his support for the extradition of the ‘NatWest Three’.



Lord Goldsmith’s achievements in pro bono matters are especially well known. He founded the Bar Pro Bono Unit back in 1996 and is its current president. He has taken this commitment further with the Attorney-General’s Pro Bono Steering Committee and a pro bono envoy, former Law Society President Michael Napier, who acts as the public interface between the committee and the profession. There will be concerns about the future of the committee, which played a key role in introducing pro bono conditional fee agreements, for example, as well as National Pro Bono Week, in the wake of Lord Goldsmith’s departure.



But the controversial actions of the politician have overshadowed the achievements as a lawyer, so much so that many believe it is not Lord Goldsmith’s problem but the fault of the role itself. The constitutional affairs select committee has been holding its own inquiry into the role of the Attorney-General, while Gordon Brown last week announced a review as part of his British governance reforms.



The committee’s chairman, Alan Beith MP, says: ‘It has been one of the most controversial tenures because of the issues that have arisen. The public and commentators find it difficult to see that Lord Goldsmith can be genuinely independent. I have always enjoyed listening to the impressively lucid and calm way in which he presents his arguments – even when I disagreed with him. But his tenure of office has called into question the awkward position of the role, and has put its anomalies into sharp relief.’



The situation is exacerbated by the fact that people believe Lord Goldsmith has politicised the position in particularly public ways. Certainly, he has raised the profile of the Attorney-General’s activities – often to the benefit of the positive work he has undertaken. But he has also done things differently, such as attending all cabinet meetings. His argument is that ‘you are a better adviser if you know what your client is trying to do’, and he makes the analogy with a company secretary who sits in on board meetings. But the fact is that his predecessors did not attend regularly, but only to deal with specific legal matters.



A politician and a lawyer, like two horses harnessed but wanting to go in opposite directions. To his credit, Lord Goldsmith has defended the role’s contradictions and ambiguities, not blamed them. Perhaps it is because those ambiguities enabled him to achieve what he has.



Polly Botsford is a freelance journalist