General reform

As the attorney-general’s role comes under scrutiny, baroness scotland and solicitor-general vera baird reveal to Anita Rice their hopes for the future


In the absence of concrete policy statements, journalists frequently resort to keeping a tally of the buzzwords public figures use as a means of gauging their intended direction of travel. Right now, the Attorney-General and her deputy, the Solicitor-General, rarely get past a sentence without uttering one or a combination of words like ‘exciting’, ‘opportunity’, ‘modernise’ and ‘understanding’.



Hardly news, you might think, given the government is now consulting on the future of the Attorney-General role as part of its wider Governance of Britain consultation. Except that the words ‘radical’, ‘de-politicisation’ and ‘non-lawyer’ are hardly mentioned at all. What sort of reform might we expect to see?



Baroness Patricia Scotland, three months into her appointment as Attorney-General, says that what really matters is that we fully understand the implications of reforming what is a complex and widely misunderstood role.



‘The consultation is a great thing because we can talk about what the Attorney-General actually does. What is quite extraordinary is how few people understand or know what the Attorney-General and the Solicitor-General actually do – the ambit of the roles and the complexity of what we do.



‘Education is hugely important. In order to change something, you have got to understand what it is and, I think, part of the consultation document’s purpose is to help people understand what we both do so that if, and when, we change it, they understand why and how the roles are changing.’



There are, of course, some duties the Attorney-General carries out that just about every person on the planet is well aware of now – advising on the legality of war being not least among them.



Calls for change to the role have intensified in recent years as the previous post-holder, Lord Goldsmith, was dogged by recurrent controversies surrounding perceived anomalies in his position. It was, in particular, misgivings over the handling of legal advice given in the lead up to the Iraq war, the ‘cash for honours’ row and the decision to halt the BAE investigation that called the role, in its current form, into question.



The Attorney-General, whose role can be traced back to the 13th century, has three core duties to fulfil. Baroness Scotland and her deputy, Vera Baird, who are both QCs, are the government’s chief legal advisers (they also oversee the Government Legal Service), champions of the public interest and superintendents of the prosecution service – namely the Crown Prosecution Service (CPS), the Serious Fraud Office (SFO) and the Revenue & Customs Prosecution Office (RCPO). It is the combination of advising government and guarding the public interest that provokes most consternation.



Gary Slapper is professor of law at the Open University. He draws parallels with the old Lord Chancellor role that was recently reformed to separate its judicial, executive and law-making responsibilities. He believes the current Attorney-General role is ‘unsustainable’ because what is in the government and public interest will not always happily converge. In those circumstances, can a single official serve two masters equally well?



He says: ‘I think it is impossible for a person, however professionally detached and however professionally excellent, to be able to execute all three roles well in modern times... what is in a government’s interest in terms of retaining power may differ from the public interest… the Attorney-General is torn between the government and the public. You cannot have a constitution that puts that person in a position where they are bound to be in conflict.’



Roger Smith, director of law reform group Justice, agrees, saying the role is ‘at breaking point’ and in need of fundamental reform. ‘We have to decisively shift the role of legal adviser out of the political arena… the status quo is no longer an option. The problems were not to do with Lord Goldsmith personally; they are structural and will keep coming up.’



Both view the Attorney-General’s role as superintendent of the prosecution services as also problematic because they could be seen to be, if not actually be, compromised. Could he or she have the public’s full confidence in terms of impartiality if faced with deciding whether to prosecute government departments or colleagues?



Baroness Scotland and Ms Baird seem genuinely excited about the prospect of reform when meeting the Gazette for this interview, underlining that it is a one-off chance to overhaul a role that has grown ‘organically’ for more than 500 years.



‘It is very rare that you get an opportunity to recast your own job. This is a once-in-a-generation opportunity to look at the role that we want and then think how to make it the very best it can be in the 21st century. This is an opportunity that may not come again, so I think we need to make the best of it,’ Baroness Scotland enthuses.



The government has not set down a preferred option in this review, signalling that it genuinely intends to consider a wide range of views and proposals. Is this determinedly open-minded approach recognition that the credibility of the role has been badly tarnished by the furore over BAE, cash for honours and the handling of Lord’s Goldsmith’s opinion on the legality of the Iraq war?



Baroness Scotland denies that charge: ‘I do not think it has been damaged. If you look at the decision on BAE, it was not a decision made by Peter [Lord Goldsmith]. Cash for honours wasn’t anything to do with this office and, indeed, the advice Peter gave in relation to the Iraq war was robust and sound. I understand there were differences of view but I don’t see that could possibly be cause for undermining the Attorney-General’s office.’



Both Baroness Scotland and Ms Baird say there is simply no inherent conflict between serving the government and public interest. Just as in-house lawyers must ensure they give sound and correct advice to their paymasters, so the Attorney-General and the Solicitor-General must discard political considerations and independently advise the government.



‘The government has legitimate interests that have to be taken into account, but we are very clear we have to keep the public interest at the forefront of our minds,’ says Ms Baird, ‘We give legal advice to government that they frequently do not like, and we do it because it is the right advice to give and because they must work according to the law, and it is down to us to say what the law is.’



They refuse to give an example of such an occasion, saying no lawyer would on client confidentiality and legal professional privilege grounds. And that, of course, is the point.



‘The Attorney-General advises about the legality of that [declaring war] and does so confidentially to government, so a prime minister can choose not to publish all the advice. The Attorney-General cannot really discharge the duty to protect the public interest if his or her advice is treated as confidential lawyer-to-client advice,’ says Professor Slapper.



Pressed on whether there are occasions where legal privilege should not apply to advice given to the government by its most senior law officer, Baroness Scotland points to the review and says that will depend on what is decided following the consultation. If, for example, it is agreed the executive should no longer determine whether the country goes to war, other mechanisms will need to be implemented.



Both are clearly determined to demonstrate they hold no prejudices as to exactly how the role should be configured, whether the Attorney-General must be a minister and so directly accountable to Parliament or an appointed official.



However, Baroness Scotland does say: ‘We are part of government but we are totally independent… that is why it is always important to have a senior lawyer as Attorney-General and to have high-quality legal requirement on advice provided by the Attorney-General’s office… and I think that historically, the Attorney-General’s office has been able to do that.’



And for every commentator calling for reform, there is another voice cautioning that there is a risk of dismantling a pivotal position within government to the public’s detriment. Conservative peer Lord Lyell of Markyate has been involved with the Attorney-General office since becoming a parliamentary private secretary to Sir Michael Havers in 1979. Having held the post of Solicitor-General between 1987 and 1992, and that of Attorney-General from 1992 to 1997, he is the longest continuously serving law officer for more than 100 years.



He says: ‘The Attorney-General role is not broken and it does not need to be fixed… I think they [those calling for reform] are misguided and they misunderstand the essential nature of the role… this whole issue about the Attorney-General has got quite confused and we are in danger of making a mistake in changing a public office that is of major importance to our liberties and the integrity of our system of governance.’



Lord Lyell asserts that it is possible for the Attorney-General to act in both the interests of the government and the public: ‘I have done it, Lord Goldsmith did it – he has been criticised but not always fairly… [the Attorney-General] is the independent law officer of the Crown. It is an absolute duty not to allow party political matters to affect the accuracy and integrity of the legal advice. They can do it, they have done it and they must do it.’



For now, Baroness Scotland and Ms Baird want to spread the message that they are there to uphold the rule of law first and foremost, rather than solely focus on constitutional issues. They point to their prosecutorial role and underline that it is key to the way justice is delivered. They intend to ‘drive policy’ to achieve a better outcome for victims – particularly those of crimes that are woefully underreported and notoriously difficult to successfully prosecute, such as domestic violence and rape.



‘We have a lot of work that we want to do in our policy role. We are superintendents over all the prosecutors. We want to drive policy in those areas. We both have a very big interest in issues around trafficking – which is commonly said to be the modern slave trade. And we have a track record of interest in rape and domestic violence, which we are confident is being prosecuted far more effectively now. But there is still more to be done,’ says Ms Baird.



There are new results surfacing regarding the government’s strategy on prostitution which will, says Ms Baird, require the Law Officers to revisit the subject in the future. In addition, there is new research suggesting that rape could be better tackled. The research document is expected to be made public within a month or so, although Ms Baird declines to comment further other than to say it will ‘help take matters forward’.



Unduly lenient sentences are high on their agenda too, with Baroness Scotland successfully arguing in the last fortnight that two-year sentences handed down to two men found guilty, in separate cases, of raping ten and 12-year-old girls should be doubled. She told the Court of Appeal that sentences ‘need to punish offenders for the harm they cause, protect children and act as a deterrent to others… the message must be that sexual activity with girls of ten and 12 will not be tolerated’.



Getting cases to court involving vulnerable witnesses and victims is another top priority for both, who are keen to develop more innovative ways to enable access to justice for those often less able to seek justice themselves.



‘We are both totally devoted to the issues in relation to vulnerable people; domestic violence, sexual assault, vulnerability of children, mental health, all these issues that are important to us and to our government,’ says Baroness Scotland.



They point to various innovations, including the use of video evidence to allow victims or witnesses in some cases to give evidence from home and to the impact of the new simple, speedy, summary justice process for prosecuting domestic violence.



‘There was a case last year where a very elderly lady was considered far too vulnerable and I think the defendants may well have thought that she would be incapable of coming to court. She gave evidence from home and as a result the defendants pleaded,’ recounts Baroness Scotland, before launching into a story about a woman who was under pressure to retract a complaint about her violent partner.



‘He was arrested, charged, pleaded guilty, and was convicted and sentenced within two hours… his partner was brought to the police station some time later by her in-laws to retract her statement. They were told he had already pleaded guilty and had been sentenced to three months in prison. It was a great relief to her because it was clear she was under pressure to retract, even though there was overwhelming evidence to show she had been badly abused by this man.’



Outside of CPS work, the newly-created RCPO has been well received and Baroness Scotland highlights the forthcoming fraud review – for which she has received an additional £28 million to spearhead – as possibly yielding similar results for ordinary people who are the victims of fraud.



‘It is a dreadful, most pernicious thing happening to ordinary people in our country. They are being, frankly, ripped off and feel they have very little opportunity to do something about it,’ she says. Both intend to work closely with the banks, the City and the Financial Services Authority among others to better understand, track and tackle fraud.



Ms Baird comments that most people would not have thought the office plays so great a part in enabling an old lady get to court: ‘I think most people regard it as an archaic role that they don’t understand at all. We are keen to break down those barriers.’



And to do so effectively, both are calling on members of both branches of the profession to respond to the consultation. It is vital to ensure, says Ms Baird, that initiatives are not merely Whitehall-led but practical. They will also continue the work Lord Goldsmith begun on pro bono work via his pro bono committee.



Baroness Scotland says: ‘There is an opportunity for all of us to make a real contribution to the communities in which we live. This is something that most of us desperately wanted to do when we came into the profession, whether it is the work we are doing pro bono or work we are doing in the community or to improve the system. We want to be part of it and want the profession to achieve the very best results.’

l The consultation period on the future role of the Attorney-General will close at the end of November.