Famously, the Attorney-General was effectively forced to declare the second Iraq war legal after General Sir Michael Jackson demanded clear advice, saying that he had spent a large part of his life sending the late Slobodan Milosevic for trial and had no intention of ending up in the next cell.


What Lord Goldsmith did next has been the source of some controversy. He backed the war but with arguments that Lord Alexander of Weedon QC, for one, called ‘scraping the bottom of the legal barrel’. In so doing, he started a continuing debate not only about his advice but his office.



The office itself is of some antiquity. The title comes down in a solid line from 1461 via such historical giants as Francis Bacon. In a recent lecture, Lord Goldsmith professed himself as not attracted to any ‘substantive change’. He thought that all that was required was a bit of education on the value of the Attorney-General’s role, and an updating of his somewhat outdated oath of office in which, the office-holder agrees to serve the Queen ‘after my cunning’.



The case for reform is based on the argument that we should have greater separation of powers, particularly now that the Constitutional Reform Act 2005 has done for the conflicts inherent in the Lord Chancellor’s traditional role. The controversy of the advice on the Iraq war exposed all too clearly the problem for an office that is, at one and the same time, the government’s independent legal adviser, a minister of the Crown responsible for prosecution, and jointly responsible for the whole criminal justice system, and a politician taking the government’s whip (let alone leader of the bar).



It is surprising that the Attorney’s role is not more controversial, although it is now the subject of an inquiry by the consitutional affairs select committee. Before the Iraq war advice, the last controversies were over Sam Silkin QC’s refusal to prosecute left-wing Clay Cross councillors, and an anti-apartheid Post Office union. The most graphic illustration of the tortured position of an Attorney is the statement of the Conservative Sir Reginald Manningham-Buller in relation to Suez: ‘I support and have supported the government’s actions, though I cannot do so on legal grounds.’ This was a curious, if not cunning, formulation.



The Attorney could be replaced by a professional head of the government legal service, perhaps protected from dismissal by appointment by terms that might be similar, if not identical, to those that protect the independence of the judiciary. What is more, maybe Parliament, not the government, should make the appointment. This is the sort of arrangement in a number of continental countries.



However, Lord Goldsmith defends his existing role through extolling the virtues of working within, rather than without, government. He cites the certification of Bills as compliant with the Human Rights Act: ‘The law officers will normally be called upon to advise in the most difficult or sensitive cases. But called upon we are.’ This argument cuts both ways. For example, judgments of the House of Lords have challenged a number of such certifications, including on key provisions of major terrorism legislation passed in 2001. An independent Attorney might have recognised that these Bills presented more problem than did a member of the government.



Lord Goldsmith has another justification. It is better, he says, to have political accountability than another type of office-holder. However, government majorities in the legislature make it unlikely that an Attorney will lose office by backing his masters. The best defence seems wholly pragmatic and rather unprincipled. With the post of Lord Chancellor no longer requiring an eminent lawyer, the Attorney remains the last senior member of the government who is a practising lawyer and is likely to have been in the recent past. In the context of the gung-ho demolition of the independence of legal professional bodies, and the rising importance of human rights both nationally and internationally, there must be some advantage in having a minister who might be disposed to have a reasonably deep understanding of the requirements of the rule of law. Indeed, Lord Goldsmith has been considerably braver about Guantanamo than Tony Blair.



But the Attorney’s role should not survive unscathed with its current powers. Lord Bingham entered the fray in a recent lecture, questioning not the role but the secrecy surrounding advice: ‘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.’ Thus, advice on important matters should, in Lord Bingham’s view, be openly published.



Sir Michael Jackson commendably stressed in his Dimbleby lecture the need for military force to be contained within the constraints of the rule of law. If the Attorney’s post, notwithstanding what many see as the deep failure of the Iraq war, furthers this, it should be retained. If not, it should go the way of the Lord Chancellor and the independent legal professions. Either way, accountability requires transparency.



Roger Smith is director of the law reform and human rights organisation Justice