Meanwhile, there is another ministerial post which on its face may also offend the
separation of powers, namely, that of the Attorney General, described by Francis
Bacon, who was one of them, as “the painfullest task in the realm”. He has
multifarious roles. He is of course legal adviser to the government. Yet he is also a
politician who takes the party whip and a Minister who nowadays attends all cabinet
meetings. He superintends various offices, such as the Crown Prosecution Service
and a number of judicial and quasi-judicial proceedings where he must decide in the
public interest. He may decide himself to bring civil actions and prosecutions or
refuse to prosecute and whether or not to bring relator actions. He is also Leader of
the English Bar.
If the Lord Chancellor’s office offended the separation of powers, surely the
Attorney’s does as well? This point has been made a number of times, by Lord
Woolf in his Hamlyn lectures, by Lord Steyn in a lecture to the Administrative Law
Bar Association, by Joshua Rozenberg in his book and indeed by former Attorney
General Hartley Shawcross following a number of incidents in the late 1970’s, where
the then Attorney, Sam Silkin, failed to prosecute the Clay Cross Councillors or the
Post Office Union for its unlawful boycott of mail to South Africa during the apartheid
era. No doubt then, as nowadays, the allegations of actual bias were false but the
issue is not the reality of bias but its appearance: does the Attorney’s action or
inaction leave a doubt in the public mind about whether his opinion was driven by law
or political convenience?
I have recently argued, in relation to the Attorney’s advice on the legality of the war in
Iraq, the substance of which I did not then join, nor will I now, that his office contains
an inherent tension and that the dual political and legal role of the Attorney inevitably
lends itself to charges of political bias in legal decisions and that the time had come
to appoint an independent Attorney, as in other countries. Some few Commonwealth
countries do have Attorneys who combine the legal and political roles but others
(such as Ireland, South Africa and India) do not.
This question may resolve itself in the end due to lack of qualified lawyers in
Parliament. As Lord Rodgers of Quarry Bank pointed out when he initiated a debate
on this question in the Lords last December 15th, in 1964 there were 100 barristers
elected to the House of Commons. In 2005 there were only 34. During that time the
profession increased its numbers 5 fold. Attorneys may perforce have in the future to
be outsourced, or recruited to the House of Lords ( if it continues to exist in its
present form).

the new constitutional
balance. We here enter matters of public administration, the inner workings of
government, questions about powers of ministers and ministries, how most rationally
to achieve policy objectives and so on. The detail of public administration does not
excite everyone, although in her newly-published wonderful biography of Leonard
Woolf by Victoria Glendinning etc. she writes about Woolf that, ‘anything to do with
administration fascinated him’. [Leonard Woolf, husband of Virginia, was also the
close friend of Professor William Robson of the LSE, one of the fathers of
administrative law and one of the few voices in the mid-twentieth century who did
espouse the control of official discretion]. Glendinning writes of Woolf that:
‘. . . He wrote, with startling lyricism: ‘Administration must be regarded as the
most precious flower and fruit, the essential mark and prerogative of the
independent, sovereign state’. He enjoyed, in the course of the tribunals [on
which he sat] learning about different worlds of work – from prison officers
and the women who clean out the government offices in Whitehall, foresters
in the north of Scotland, the men to talk down aeroplanes in fog, and a small
and peculiar class of men in tthe secret service’
One area that has been the subject of much recent attention and which involves a
‘small’ but not necessarily ‘peculiar’ class of men is the office of the Lord Chancellor.
The story of the demise of the fulsome powers of the previous Lord Chancellors is
well known to this audience. His simultaneous roles of Head of the Judiciary, cabinet
minister, appointee of judges and speaker of the House of Lords in its legislative
capacity broke all the rules about the separation of powers. Professor Eric Jurgens
of the Council of Europe came on a mission to this country to tell us that the new
states of the former Soviet Union often sought in their new constitutions to have their
justice ministers sit as judges and to appoint other judges. When told by the Council
of Euorope or Venice Commission that this violated the spirit of democracy, they
would say that the model was inspired by our came from the Lord High Chancellor.
Shortly after Jurgens’ visit, although I’m not sure it was directly caused by it , the
Constitutional Reform Act was passed, removing the Lord Chancellor’s judicial
status, creating an independent Judicial Appointments Commission and arranging to
have our highest court separated from the House of Lords and called the Supreme
Court of the United Kingdom However, on further reflection I do believe that the matter is more complex than I had
realised – or has become more complex in the light of recent events. I mentioned the
advantages of an unwritten constitution earlier, but one of its defects is that one
cannot at a glance view the constitutional map. Successive statutes and other laws
alter the constitutional equilibrium so that the interacting points of influence may so
easily be lost and the bigger picture missed. In this case the constitutional balance
has been radically altered by the Constitutional Reform Act and the new role of the
Lord Chancellor. The Lord Chancellor remains in name, but he is no longer the Head
of the Judiciary and the constraints associated with that role therefore disappear.
He is in practice the Secretary of State for Constitutional Affairs, heading a massive
department of over 23 thousand and spending more than £3 billion. Most important
perhaps, he need not even be a lawyer and could therefore be unconcerned with the
disciplines of that vocation.