The office of the Attorney-General: Then and Now

A discussion in the Twittersphere about aspects of Mr Jeremy Wright’s recent appearance in the Brexit litigation as leading counsel for the Crown led to a request that I should post a piece about the office of Attorney General.

The thirteenth century saw the first occasion when a professional attorney was paid to prosecute cases for the King[1], who could not appear in courts where he had an interest, but it was not till 1461 that this lawyer was summoned by writ to the House of Lords to advise the government on legal matters. This is the first reference to an office of “Attorney General”, and during subsequent centuries many distinguished lawyers held the office, with giants like Rufus Isaacs (1910-1913)[2] and F.E.Smith (1915-1919)[3] serving as Attorney General in the second decade of the last century. By convention the Attorney General always prosecuted in poisoning cases.

In the nineteenth century the Attorney General would be based in his chambers in the Temple. He would be paid a retainer and receive individual brief fees for his work for the Crown, whether advisory or representational. He would then carry on his private law practice when he was not advising the Cabinet or appearing for the Crown in the Courts. It was only in Sir Hartley Shawcross’s time as Attorney General (1945-1951) that the holder of the office would be paid a full ministerial salary instead of a retainer and brief fees.

In addition to appearing for the Crown in Court, the Attorney General also had other responsibilities, such as deciding whether to grant his consent[4] to litigation being brought against the Crown, which could not be sued without its consent prior to the enactment of the Crown Proceedings Act 1947 (shades of the Winslow Boy[5]), deciding whether to apply for committal for contempt of court, and determining that an application might be made to the court to set aside the inquisition findings of a coroner’s jury and order a new inquest. He might also sanction “a relator action” in which an injunction might be sought against someone who found the penalties imposed by the criminal law no bar to highly profitable law-breaking, or to restrain a threatened breach of the criminal law.[6]

However distinguished the holder of the office might be, he could not expect slavish deference at all times from the Bench. In his Miscellany-at-Law[7] R.E.Megarry QC tells of the Attorney General, reputedly Sir Thomas Inskip QC (1932-1936)[8], who told the law lords that roulette was played with cards, only to receive a devastating monosyllabic correction from the woolsack.

Sir Peter Rawlinson QC MP was Attorney-General between 1970 and 1974.   In the Prologue to his Memoirs, “A Price Too High”[9], he describes the occasion in July 1962 when he was invited by Harold Macmillan to become Solicitor-General, the junior Law Officer of the Crown[10]. When he was on the point of replying, the Prime Minister said:

“But before you give me your answer I must remind you of the special position of the Law Officers, who are the last, the sole survivors in the long line of public servants of the Crown who sit in the House of Commons.”

Sir Peter writes:

“I swallowed back my words of acceptance and was honoured by a scholarly review of mediaeval office holders, a review which flowed into the sixteenth and seventeenth centuries, embraced approvingly the career of Samuel Pepys, and concluded with the admonition that the loyalties of a law officer must be first to the Crown, second to Parliament, and only thirdly, almost incidentally, to the administration. And now, concluded the Prime Minister, would I do him the honour of joining his administration as Solicitor General?”

I find it hard to imagine that a similar conversation took place in July 2014, nearly 50 years later, when David Cameron invited a 41-year old member of the junior criminal Bar to replace an Attorney General whom he had sacked for giving his administration correct but unpalatable advice about this country’s obligations under an international human rights convention.

Sir Peter’s book could hardly do more to illustrate the vast difference between the way he had carried out his duties as Attorney General and the way his present day successor performs his job. He said that when he took over in June 1970 he decided that he was going to lead for the Crown in court far more often than his immediate predecessor.[11] Quite apart from the fact that he enjoyed being in court and came from a substantial practice, he had been taught that it was the duty of the senior Law Officer whenever possible to represent the Crown in litigation in which it had a major interest. In addition to appearing personally to prosecute on every circuit apart from the Welsh circuit, he also appeared in much civil litigation and appellate proceedings. Although he knew that this policy would not be popular with his political colleagues, he considered that for so long as a system existed in which the Attorney General was the first Counsel to the Crown as well as legal adviser to the Cabinet, the first duty was that of Counsel:

“The lesson given me across that long table in Admiralty House on that June afternoon by the first Prime Minister whom I served remained in my mind.”

In those days the Law Officers were based in the “Law Officers’ Corridor” in the Royal Courts of Justice, where I used to go from time to time between 1978 and 1981 when I was a member of what is now called the Attorney General’s “A” panel[12]. This was created for the first time in 1978 when Harry Woolf was the Treasury Devil[13] and Sam Silkin QC MP was Attorney General. In Sir Peter’s day as Attorney General he had a private secretary who took his dictation and kept his diary, a driver, and a staff of four qualified lawyers. Add to these the Solicitor General and his smaller retinue and they all fitted into a comparatively short corridor. When the time came for them to leave the Law Courts and seek new premises closer to Whitehall, I remember Sir Patrick Mayhew QC MP, who was then Attorney General, insisting that they should not be too conveniently close for people to drop in easily, with the result that they relocated to some attractive rooms in Buckingham Gate, close to Buckingham Palace. It is only in much more recent years that the Law officers were relocated again to offices in a particularly unprepossessing part of Victoria Street, where I have visited all the last three holders of the office.

I have described elsewhere Sir Peter’s concern, expressed 15 years after he left office, that the Westland Affair[14] showed that at heart what a modern administration really wanted was

“tame ‘in-house’ legal advisers, creatures of the government more in the style of the retained family or company solicitor than of independent officers of the Crown.”

Part of the essence of the Attorney General’s office was his role as the guardian of justice – hence his central role in relation to those charged with contempt of court. One of the most remarkable court hearings I ever attended was a three-day Chancery case in which Mr Justice Vinelott had to determine whether Lord Kagan’s company might lawfully plead guilty of fraud, against the advice of their lawyers, in order to prevent any long public ventilation of the facts at the trial at the Leeds Crown Court at which his lordship had himself entered a guilty plea. Sir Michael Havers, who was then Attorney General (1980-1987), invited me to represent him as guardian of the interests of justice, although in the event my role was largely superfluous.

In those days statute added two extra responsibilities to the Attorney General’s burden. The first was to make references to the Court of Appeal from time to time in cases where a trial judge had made a ruling favourable to the defence on a point of law of general public importance. Although the jury’s verdict was final and the outcome in the Court of Appeal could not affect the defendant personally, this was a means of obtaining an authoritative ruling at appellate level on the point of law in question.

The other was the procedure by which the Court of Appeal might be asked by the Attorney General to review what was said to be an “unduly lenient sentence”. In these cases an increase in the sentence did affect the defendant personally… I remember that Lord Lane, who was Lord Chief Justice (1980-1992) at the time this reform was introduced, was initially sceptical about the need for it, but was very soon convinced after dealing with what was always a tiny minority of cases in which the sentencer had gone off the rails for one reason or another. One High Court judge, who always prided himself on his lenient sentencing, told me that on the only occasion when one of his sentences was referred to the Court of Appeal an even more lenient sentence was substituted.

I was (and in two cases – the others have sadly died – still am) a personal friend of five of the six holders of the office of Attorney General between 1987 and 2010[15] and have always been on friendly terms with the sixth[16]. All of them had heavyweight practices at the Bar before their appointment, and none of them by any stretch of the imagination could be described disparagingly as “political silks”. Nor could Dominic Grieve, the Coalition Government’s first Attorney General (2010-2012) who suffered the fate traditionally meted out to messengers who brought bad news.

As Peter Rawlinson feared, the office got more and more desk-bound, and although Lord Goldsmith (2001-2007) made a valiant attempt to break the hardening mould and appear in court as often as he could, this was but a pale reflection of what had happened in earlier years. Because of this trend, I believe I only once had an Attorney General appear before me, and that was Lord Goldsmith in October 2002 in the Court of Appeal (when I was sitting with Lord Woolf and Lord Justice Chadwick) in what became known as the Belmarsh case.[17] Both the Special Immigration Appeals Commission and the Court of Appeal heard that case quite soon after the 9/11 attack on the Twin Towers, and we reached the same conclusion on the main issue (though differing on the issue of discrimination). For some reason the case did not reach the House of Lords for a further two years, so that they were able to decide it in the knowledge, denied to us, that no further terrorist outrage had in fact happened for over three years since 9/11.

Lord Goldsmith’s tenure of office was also marked by the fact that as Attorney General he played a central role in promoting pro bono legal activities. He founded both a national and an international pro bono committee (I served for a while on the latter under his successor Dominic Grieve) and he also introduced primary legislation by which the fees which would otherwise have been payable to the lawyers for a successful party who had acted pro bono were paid instead to the Access to Justice Foundation, a body charged with promoting access to justice in a practical way.

In Baroness Scotland’s time in office (2007-2010) a new Protocol was signed between the Attorney General and the prosecuting departments whereby in future the role of the Attorney General in relation to individual prosecutions would be limited to deciding whether to give his/her consent to a prosecution when statute required this, together with the right to interfere by stopping a prosecution if satisfied that it was necessary to do so for the purpose of safeguarding national security.

The tradition of appointing experienced advocates to the office of Attorney General seems, at any rate temporarily, at an end. When the present holder of the office, Jeremy Wright QC MP, appeared in the Divisional Court last week to lead for the Crown in the Brexit case, nobody expected him to be able to cope with tough questioning from the Bench on the very difficult questions of constitutional law that were being debated. In the event he gave a factual description of the lead-up to the issues, including relevant statutes and familiar caselaw, and left it to leading Treasury Counsel (James Eadie QC) and a third leading counsel (Jason Coppel QC) to argue the difficult points in the Crown’s case.

In the event, no doubt in deference to his inexperience, the members of the court asked very few questions of the Attorney General during his presentation. According to the uncorrected transcript[18], this is what happened when one of them did, and when a more skilled advocate would have had the answer at his fingertips.   He was speaking of the absence of any provision to bring the UK’s adherence to the Treaty of Rome to an end in 1972.

[THE ATTORNEY GENERAL] Parliament could of course have made such provision.  And would do so against the background of the established position under customary international law that states were entitled to withdraw from or renunciate treaties. We submit –

LORD JUSTICE SALES: You say that is international law?  I think that that was in dispute in light of Article 56 and 62, I think it was, of the Vienna Convention.

THE ATTORNEY-GENERAL: Yes. The submission we make, my Lord, is that as a matter of customary international law that was the position in 1972. The Vienna Convention on the law of treaties did not come into force until 1980, so we submit that it was a matter of customary international law which Parliament would have understood at the point at which the 1972 Act was passed.

LORD JUSTICE SALES: And the authority for that is?

THE ATTORNEY-GENERAL: Well, we submit it is a matter of customary international law. I don’t believe that is disputed. But of course I will be corrected, I am sure, if I am wrong about that.

THE LORD CHIEF JUSTICE: Would it be possible for some member of your team to give us a sort of reference point to one of the authorities, which no doubt will not be – going back to 1962[19], they won’t be as extensive as they are today. But if someone could give us a note of that and provide it to Lord Pannick and if there is an issue on customary international law, we can then indicate it.

THE ATTORNEY-GENERAL: My Lord, we will certainly do that.

It remains to be seen whether in future we will return to the tradition of appointments to the office of Attorney General of advocates with sufficient skills and practical experience to argue difficult points of law on behalf of the Crown in the courts.

Another of the difficulties confronting the present arrangements arose from the fact that in spite of the importance of the case, the Attorney General was constrained to seek permission to leave the court during the third day of a hearing which had lasted slightly longer than had been anticipated. I am sure that this was inevitable, given the other pressures on his diary, but it marked a sea change from the way in which his predecessors would have acted more than a generation earlier.

 

 

 

 

[1] The function of Lawrence del Brok in about 1247 was to sue ‘”the King’s affairs of his pleas before him”.

[2] Later the Marquess of Reading: Lord Chief Justice, Foreign Secretary and Viceroy of India.

[3] Later the Earl of Birkenhead: Lord Chancellor and Secretary of State for India.

[4] A petition of right seeking such consent might be delivered to the Attorney General who might grant it with the words “fiat justitia” – “let right be done” – a practice colloquially described as granting his fiat.

[5] Terence Rattigan’s play of that name was based on the case of George Archer-Shee, a 14-year-old cadet at the Royal Naval College, Osborne, who was convicted of stealing a postal order in 1908. His conviction was subsequently set aside by the High Court after the Attorney General had granted his fiat.

[6] In Gouriet v Union of Postal Workers [1978] AC 435, in which Mr Gouriet complained that the trade union was inciting its members not to handle postal packets destined for South Africa, the House of Lords overruled a judgment of the Court of Appeal which had held that if the Attorney General refused consent, he was not above the law, and an aggrieved citizen could then come to court direct for relief. Lord Denning MR memorably said: “To very subject in this land, no matter how powerful, I would use Thomas Fuller’s words over 300 years ago: ‘Be you ever so high, the law is above you’.” The House of Lords said that in making a politically charged decision on a relator application, the Attorney General was answerable to Parliament, not to the courts.

[7] Stevens & Sons, 1955.

[8] Later, as Lord Caldecote, Lord Chancellor and Lord Chief Justice.

[9] George Weidenfeld & Nicolson, 1989.

[10] By the Law Officers Act 1997 the Solicitor General may perform any function of the Attorney General.

[11] Sir Elwyn Jones QC MP (Attorney General 1964-1970 and later, as Lord Elwyn-Jones, Lord Chancellor 1974-1979).

[12] Its other members were Simon Brown, Brian Davenport, Konrad Schiemann, Tony Grabiner, David Steel, Andrew Collins and Nick Bratza.

[13] As the first junior counsel, common law, was known. The tradition then was that this post would be held by a senior member of the junior Bar for five years, with a reversion straight to the High Court Bench.

[14] When Leon Brittan QC MP (Secretary of State for Trade and Industry) felt constrained to resign from office following the authorised leak of a letter from the then Solicitor-General (Sir Patrick Mayhew). The Attorney General, Sir Michael Havers, had been so angry about the incident that he threatened to send the police in to 10 Downing Street to ascertain who had authorised the leak, an episode Charles Moore describes at some length in the second volume of his excellent biography of Margaret Thatcher.

[15] Patrick Mayhew, Nicholas Lyell, Gareth Williams, Peter Goldsmith and Patricia Scotland.

[16] Sir John Morris, now Lord Morris of Aberavon KG QC.

[17] A v Home Secretary [2002] EWCA Civ 1502; [2004] UKHL 56.

[18] For 18 October 2016, pp 91-93.

[19] In error for “1972”?

7 thoughts on “The office of the Attorney-General: Then and Now

  1. Pingback: The office of the Attorney-General: Then and Now — a fascinating blogpost by Sir Henry Brooke, a retired Court of Appeal judge – Bermuda Legal

  2. Pingback: Law and religion round-up – 23rd October | Law & Religion UK

  3. Daniel Hill

    Thank you for a fascinating post. One technical point: the hyperlinks for the footnotes don’t work for me, either going to the footnote or going back to the main text.

    Like

    1. I am sorry. I did it by a cut and paste conversion from Word. Endnote 5 in the text is explained by endnote 5 at the end of the piece, but the hyperlinks don’t work either way, as you say. if any reader knows how I could do better next time, I would be happy to hear from them.

      Like

      1. Daniel Hill

        The links try to take me to a OneDrive document. One way round it might be to save it to a local drive before copying and pasting, and then save it to OneDrive afterwards? Thanks again for your fascinating posts.

        Like

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