If the positions have become ceremonial and are not held by senior lawyers, is it time to abolish them?
The appointment in David Cameron’s reshuffle of two relatively junior criminal practitioners as the chief legal officers to the government seemed an odd move.
The hugely able Dominic Grieve QC was given the old heave-ho as attorney general, seemingly because he was doing his job providing legal advice on the UK’s withdrawal from the European Convention on Human Rights, albeit advice his boss did not care for.
Eyebrows were further raised when it emerged that Robert Buckland, the newly appointed solicitor general (replacing sacked Oliver Heald, soon to be Sir Oliver) had some years ago been found guilty of professional misconduct.
After their formal swearing in at the Royal Courts of Justice this week, Buckland and the new attorney general, Jeremy Wright, then had to be sworn in as QCs as neither had gained the rank while in practice.
At the investiture, the lord chancellor said anyone who doubted to the two’s ability would be making a ‘foolish mistake’. But without doubting Chris Grayling’s words, the appointments do seen to undermine the importance of the law officers’ role.
As indeed did Grayling’s appointment as lord chancellor in the first place: the former television man was the first person without a legal background to have bagged the job since 1558.
This week the Lords constitution committee, which is conducting an inquiry into the role of the lord chancellor, heard evidence from a former lord chancellor and a former master of the rolls. One word that cropped up with notable frequency was ‘clout’.
Lady Dean of Thornton-Le-Fylde asked the witnesses what can be done to ensure a chap who is first and foremost a politician, climbing the greasy pole of promotion, has sufficient clout within the Cabinet when advising on legal and constitutional matters.
Nothing, came the reply from Lord Phillips of Worth Matravers – basically cross one’s fingers and hope the PM appoints someone with clout. Not hugely reassuring.
The same point can be made about law officers – if they are not serious and senior legal minds, how will they have the clout with Cabinet colleagues? Won’t they instead become stooges – reliant on what they are advised by others?
Since the Constitutional Reform Act 2005 the lord chancellor is no longer head of the judiciary, although he does retain some responsibility for appointing judges and has a statutory duty to uphold the rule of law and judicial independence.
As the former incumbent Lord Mackay of Clashfern told peers the importance of the role of the lord chancellor, tagged on to the job of secretary of state for justice, has diminished since the 2005 act.
The most important aspect of the role, he said, is to indicate to the prime minister and Cabinet when a matter requires the advice of the law officers. But if the law officers are not expert lawyers, that seems pointless.
So, if the law officers are merely token appointments and the lord chancellor almost entirely a ceremonial position, what exactly is the point of them?
The government employs a phalanx of lawyers who could perform their tasks more expertly – and save a few pennies for the taxpayer to boot.
Catherine Baksi is a Gazette reporter