He owes it to the public, on trust, to see to it that the law is observed by the
government’.
Zamir then points out that the Attorney as a watchdog must be ready not only when
necessary to bark, but also to bite. His teeth are provided by the fact that not only is
the Israeli government required to follow his opinion (which in practice is what
happens in the UK) but (and this is different from the UK) if the government does not
do so the Attorney may institute criminal proceedings against the government, or
refuse to provide them with a legal defence to any challenge in court.
By looking at examples such as these it may be possible to get the best of all worlds:
A highly qualified lawyer (with specified qualifications that ensure that he is seeped in
the independent values of the legal profession) at the heart of government, yet with
duties to serve the public interest above party political interest, and to promote and
enforce the rule of law and other values of a constitutional democracy – such duties
set out clearly in a statute or constitutional form, and backed up by a revised oath of
office. In those circumstances, in the words of Sir Hartley Shawcross,
‘The rule of law would then be given not only the reality (which I hope it still
has) but also the appearance (which it now lacks) of complete detachment
from party politics.’
At the same time other grey areas of the Attorney’s role could be sorted out. We
know that he has the responsibility of advising government, but his role in advising
Parliament is much less clear. The Attorney now does advise in respect to
Parliamentary discipline and conduct (although the Speaker of the House of
Commons has his own counsel) and occasionally advises on certain bills. Select
committees such as the Joint Committee on Human Rights provide advice as well,
but to be a well-informed legislature Parliament does require clearer access to
independent legal advice than is now available.
Further reforms might also be provided to strengthen the rule of law on the part of
government generally. We have seen that, despite the reference in the
Constitutional Reform Act to the ‘existing constitutional principle of the Rule of Law’,
and the reference to the rule of law in the Lord Chancellor’s oath, there is no specific
statutory duty upon any minister to protect or promote the rule of law in any specific
way. The Ministerial Code of Ethics (which does not have statutory force) sails quite

close, but without really reaching the rule of law in any meaningful way. Section 1.1
states that
Ministers of the Crown are expected to behave according to the highest
standards of constitutional and personal conduct in the performance of their
duties.
The notion of ‘constitutional conduct’ is not defined although section 1.5 states that
The Code should be read against the background of the overarching duty on
Ministers to comply with the law, including international law and treaty
obligations.
Secion 6.22 of the Code then requires Ministers to consult the Law Officers in good
time where the law is in doubt or disagreement within or between departments and
before the government is committed to ‘critical decisions involving legal
considerations’.
The Code also requires Ministers to ‘uphold the administration of justice’ and to ‘
protect the integrity of public life’ and observe the seven Principles of Public Life set
out in the first report of Lord Knowland’s Committee on Standards in Public Life.
These principles are selflessness, integrity, objectivity, accountability, openness,
honesty and leadership. Surprisingly, the core principle of ‘legality’ is not included in
that list.
There is much talk these days of human capital and social capital. But what of
democratic capital? This country has in the recent past not neglected its democratic
capital, which has been significantly maintained and renewed. We have moved with
rapid speed to a constitution which now supplements the values of representative
democracy with a high concern for the rule of law, and which limits the opportunity for
political intrusion on fundamental rights and liberties. Alterations to some of the
structures of government seek to support and supplement these trends and more are
needed.
These developments will never please those who mistrust legality or who regret the
demise of a merely political constitution. Overall, however, these changes do not
impair democracy, but constitute its fuller realisation.

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