The result may be therefore that if the Attorney General is an employed practitioner,
worthy as he or she may be, there may not be a lawyer at the heart of government.
Does that matter? We do not necessarily want an economist to be Lord Chancellor a
doctor to head up the Department of Health . Such advice that is given to the Health
Ministers is provided by an independent civil servant known as the Chief Medical
Officer who is not a political appointment and does not change with a change in
government.
On the other hand, the judiciary is a branch of government and the law permeates all
government departments. And would the appointment of an outsider necessarily
ensure that that person were less ‘political? In those countries that do appoint
outsiders, they are often still seen to be predisposed to the aims of the government.
The may be appointed from the outside, but when appointed assume the hue of the
in- house lawyers of the familiar kind.
One question we would have to ask is: If we did have a skilled ‘objective’ nonpolitical lawyer, are we sure that he could assess the ‘public interest’ as well as a
political attorney? I refer here to the role of the Attorney in bringing prosecutions,
entering a plea of nolle prosequi to prevent a prosecution, or bringing or refusing to
bring a relator action. In the Gouriet case Lord Wilberforce pointed out the political
delicacy which was required of the Attorney’s judgment in these matters. In that
case, the House of Lords preserved the Attorney’s absolute discretion to refuse a relator action on the ground that the Attorney has to be free to take into account
matters of ‘policy’, such as whether the prosecution would exacerbate an already
sensitive industrial situation; would it be effective or futile? Would it be lead to
political martyrdom? Would it provoke a national strike? These, he said are not
questions for judges. Are they questions for non-political outsiders?
Above all, is there not an advantage in having at the heart of government an Attorney
of high quality, who embodies the traditions of an independent profession and who
embraces the values of legality and the rule of law? I have in mind Lord Goldsmith’s
clear criticism of Guantanamo Bay and his advocacy in favour of human rights.
When he expresses these values as a Minister of the Crown, rather than a mere
detached outside adviser, they are articulated not as mere expressions of the law but
of government policy. Surely ministers are more likely to accept such advice
because it comes from ‘one of them’, someone essentially on their side, rather than
from some externally contracted technocrat?

There is much to be said on both sides of this argument, but is there a way we could
ensure the best of both models of Attorney General? A force for the rule of law at the
centre of government while reducing or removing any appearance of political bias?
The Constitutional Reform Act may provide an interesting way forward. Section 2 of
the Act provides the qualifications of the Lord Chancellor. These qualifications
include senior political or legal experience but the Lord Chancellor does not have to
have had either. A similar statute setting out the Attorney’s experience could
however specify carefully qualifications that ensure a lawyer of competence, seeped
in the highest legal traditions.
Section 3 of the Constitutional Reform Act then imposes a duty to respect the
independence of the judiciary. This duty is imposed upon the Lord Chancellor, and
all other ministers of the Crown with responsibility for the judiciary or the
administration of justice. And the Lord Chancellor must ‘have regard to’ matters such
as ‘the need for the judiciary to have the support necessary to enable them to
exercise their functions’.
What about the duty to protect and promote the rule of law? Part I of the CRA does
take us closer to the rule of law, albeit in obtuse fashion. It says that: ‘This Act does not adversely affect (a) the existing constitutional principle of the rule of law, or (b)
the Lord Chancellor’s existing constitutional role in relation to that principle.’
That provision is encouraging in two respects: it reminds us that, although our
constitution is unwritten, there is an existing principle called the rule of law. And it
reminds us that the Lord Chancellor has had a constitutional role in relation to the
constitutional principle of the rule of law. But it does not spell out the precise nature
of that role is and how it should be fulfilled (contrary to some of the defeated
amendments to the Bill in the Lords that sought to do that with greater clarity). A duty
upon the Attorney General could be more specific in that regard.
The Chancellor’s duty in respect of the rule of law is however endorsed by another
device, his oath of office. Section 17 of the Constitutional Reform Act amends the
former oath of office of the Lord Chancellor and provides an oath as follows:
I swear that in the office of the Lord High Chancellor of Great Britain I will
respect the rule of law, defend the independence of the judiciary and
discharge my duty to ensure the provision of resources for the efficient and
effective support of he courts for which I am responsible.
Compare that spanking modern oath with that of the Attorney, which is presently as
follows:

I do declare that well and truly I will serve the Queen as Her
(Attorney/Solicitor) General in all Her Courts of Record within Great Britain,
and truly counsel The Queen in Her Matters, when I shall be called, and duly
and truly minister the Queen’s matters and sue The Queen’s process after the
course of the Law, and after my cunning. For any matter against The Queen
where The Queen is party I will take no wages or fee of any man. I will duly in
convenient time speed such matters as any person shall have to do in the
Law against the Queen, as I may lawfully do, without long delay, tracting or
tarrying the Party of his lawful process in that that to me belongeth, and I will
be attendant to The Queen’s matters when I shall be called thereto.
Not exactly an oath for our millennium, you may think. Contrast the duties set out in
that oath of the Attorney General to the Queen with the statement of Professor Zamir
[ the famous public law scholar and later an Israeli Supreme Court Judge, writing
about his experience as Attorney General of Israel]: