The governments plans to reform the office of attorney general appear to be mired in whitehall infighting


What a mess the government has made of its plans to reform the office of Attorney General.



And yet it all started so well. Within a week of becoming prime minister last summer, Gordon Brown appeared to know exactly what needed to be done. ‘The role of the Attorney General, which combines legal and ministerial functions, needs to change,’ he told Parliament.



Only three weeks later, we had a consultation paper. ‘The government’s commitment to rebalancing power between the executive, legislature and the people inevitably involves reform of this historic office,’ wrote Lady Scotland – the new Attorney General – in a foreword.



Unlike Tony Blair, who tried to abolish the Lord Chancellor overnight without telling anybody outside Downing Street, Brown apparently wanted to listen to people’s views first. Officials insisted that the government had ‘no preferred option’ for change.



At the time, I found this refreshing. But it now strikes me as a sign of desperation to announce changes without any idea of what these should be. And, as far as I can tell, Lady Scotland has been fighting a rearguard action to ensure that any reforms to her role are as ineffective as possible.



There seems to be something of a power struggle going on in Whitehall, with Jack Straw and his junior minister Michael Wills seeking to limit the Attorney General’s power to block prosecutions on national security grounds. In this, they have the backing of the Commons Justice Committee, which recommended last summer that the post should be abolished in its present form.



Gone would be the lawyer-cum-politician who gives legal advice to the government, who ‘superintends’ the prosecution services and who also represents the public interest as an independent officer of the Crown. Instead, the legal functions of the law officers would be carried out by an official and their ministerial duties transferred to Straw’s Ministry of Justice.



That idea received a dusty response from Lady Scotland’s predecessor, Lord Goldsmith. In his view: ‘It would be wrong to reduce the role of the Attorney General to that of a legally qualified, non-ministerial civil servant.’



Last week, Lord Goldsmith confirmed that he had not had second thoughts since his Denning Lecture to the Bar Association for Commerce, Finance and Industry last November. His message then was that downgrading the Attorney General’s role would lessen protection both for the public and for the rule of law. That is because there would no longer be a ‘senior lawyer at the heart of government’, a requirement he regarded as critically important.



Concerns over whether the Attorney General should retain the power to block prosecutions on ‘political’ grounds can be traced back to three cases that cropped up on Lord Goldsmith’s watch.



The first, of course, was his advice that it would be lawful to invade Iraq in 2003. This proved controversial, he told me last year, for ‘one reason above all. It turned out that we couldn’t find the weapons of mass destruction that the whole country believed were there. If WMDs had been found, I don’t believe we would have had the debate that followed’.



The second was the decision by the Serious Fraud Office (SFO) to drop its investigation into whether Saudi officials were bribed to win an arms deal for BAE Systems. Lord Goldsmith admitted putting pressure on SFO director Robert Wardle – not to stop the investigation but to explain how the director would ‘prove the essential elements in our corruption law of principal and agent in the special constitutional circumstances of Saudi Arabia’. In Lord Goldsmith’s view, Wardle had no answer to a loophole in the Prevention of Corruption Act 1906 – that no offence is committed if an agent’s corrupt reward is approved by his principal.



The third case – which never reached Lord Goldsmith – might have required him to decide whether Labour supporters should face prosecution over the cash-for-honours affair. Far from bending the law in their favour, he said he would have strongly supported such a prosecution had the evidence been there.



In none of these cases was a prosecution blocked on political grounds. Still less are they examples of the Attorney General insisting that a case should go to court despite the misgivings of the relevant prosecutor. Whether the Attorney General’s power of ‘superintendence’ includes a power to ‘direct’ a prosecution is a question that has never been settled by the courts.



But it is well established that the Attorney General can consult government colleagues before deciding whether a prosecution is in the national interest. In my book The Case for the Crown (1987), I mentioned the case of Nina Ponomareva, a Russian athlete accused of shoplifting during a visit to London in 1956. Since efforts were being made at that time to improve relations with Russia, the Attorney General consulted the foreign secretary before disclosing that she would have been prosecuted – if she had not previously ‘done a runner’.



No prosecution can go ahead unless it is judged to be in the public interest – which must include the interests of national security. Such questions are judged better by a legally qualified member of the government rather than by a public official. We might never have designed the Attorney General’s role in this way but, for once, we cannot improve on evolution.



joshua@rozenberg.net