Is there a good lawyer in the house?

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The Independent Online

A young barrister I once knew became Conservative candidate for a constituency on the outskirts of London. It was not a safe seat but it was certainly winnable (it is now held by the Conservatives). My friend, then in his late twenties, felt quite pleased with himself. He asked the clerk of his chambers whether he would join in the general congratulations. The clerk replied that he regretted he could do no such thing. The young man would have to choose between politics and the law. If he chose politics, he would find less work coming his way. My friend chose the law, relinquished his candidature and ended up a Lord Justice of Appeal. He might, I suppose, have become Lord Chancellor or Attorney General instead.

The story is typical of many in the last 50 years. The connection between politics and the law, at its strongest before the First World War, has gradually become weaker. This may seem difficult to credit at a time when the Prime Minister and his wife are both lawyers, as are the Foreign Secretary, the Shadow Foreign Secretary and the Leader of the Opposition as well. But so it is. The leading lawyers of our day no longer want to go into Parliament largely because a career in politics takes up more time than it used to ­ the more so since Mr Robin Cook altered parliamentary hours to compel MPs to work in the morning instead of loafing around the place at night.

One result is that prime ministers find it in- creasingly difficult to get hold of competent law officers. Lord Goldsmith, the present Attorney General, used to be Peter Goldsmith QC, a leading barrister, active in human-rights and other worthy causes, but not an MP. The Solicitor General, Ms Harriet Harman, was manifestly a highly political creature. But she is the first occupant of her office to be both a woman and a solicitor, for ­ in typically English fashion ­ the Solicitor General was always a barrister. In fact the appointment of Ms Harman as Solicitor General was first proposed in this column: one of my few suggestions ever to come to anything.

Ms Harman's predecessor was Mr Ross Cranston, a blameless and obscure academic from Australia who sits for Dudley North. He put in a rare appearance on television last week to defend Lord Goldsmith's refusal to publish his advice on the legality of the invasion of Iraq. I write that it is Lord Goldsmith's refusal. Secretly, he may want to publish and be damned, though somehow I doubt it. Certainly the Government ­ by which I mean Mr Tony Blair ­ does not want to publish the Attorney's advice.

Before getting on to the merits of this question, it may be as well to say something of the law officers' curious position, at one minute members of the government, at the next independent contractors, no longer on the staff. Last summer Cheerful Charlie (Your Chin-up Boy) Falconer, to adapt Lord Woolf's felicitous description of him, proposed the abolition of the Lord Chancellor and his replacement by a Judicial Commission and a Minister for Constitutional Affairs. He also proposed the abolition of the Lords of Appeal in Ordinary, the law lords, and their replacement by judges of a new Supreme Court. These judges would be the existing law lords. They are divided about the proposal, with a slight majority in its favour.

If I had been in Cheerful Charlie's position I should at least have taken the precaution not only of talking to them first ­ after all, there are only a dozen ­ but also of finding somewhere for their deliberations. Even in the absence of this preliminary piece of estate agency, it is absurd that they cannot be accommodated in Somerset House. The officials of the Inland Revenue, or some of them, should simply be told that they have to move. Other civil servants are constantly undergoing similar changes. If, however (leaving aside the convenience of the Revenue), Somerset House proves impossible, there is no earthly reason why the new court should not be in the Royal Courts of Justice in the Strand.

It is babyish of Lord Woolf to say that this new tribunal, or old tribunal under a new name, cannot be called a Supreme Court because it will lack the power to overrule Acts of Parliaments. "Supreme Court" means merely that it is the highest court in the land, the position presently occupied by the House of Lords.

For once, I am prepared to give the Government the benefit of the doubt ­ to concede that Cheerful Charlie's proposals, opposed by Lord Irvine, were designed to consolidate the separation of the judiciary from both the legislature and the executive. For there is, as we know, no separation in this country between the legislature and the executive. But the strange thing is this. Though Mr Blair and his old chum Charlie were right about the anomalous position of both the Lord Chancellor and the law lords, neither of them breathed a word about the equally curious position of the law officers.

It is sometimes said that to publish their advice would be to betray the principle of professional confidentiality. Well, it seems to me to be a question of who is doing the betraying. If I went to my solicitor and confessed to all kinds of indiscretions and even misdemeanours, I should feel aggrieved if he then told his friends at the club about them, to merry laughter all round. If, however, he then sent me a letter of judicious advice, I should feel perfectly entitled to quote its contents to my friends.

In 1986, in the fury of the Westland affair, it was the Labour opposition which accused the Conservative government of sharp practice when, for its own partisan purposes, it leaked a letter from the Solicitor General, Sir Patrick Mayhew. In 1865, following riots in Belfast (some things never change), the Prime Minister, Lord Palmerston, said that there was nothing wrong with revealing the law officers' advice.

In 1911, in the Archer Shee case, on which Terence Rattigan based The Winslow Boy, the Attorney, Sir Rufus Isaacs, outlined to the Commons the advice he had given, because he did not want the First Lord of the Admiralty to be blamed instead. In 1990, in the Spanish fishermen's case which established the supremacy of European over UK law, the government disclosed the law officers' opinion. So complicated was it that no one paid the slightest attention.

It would be idle to pretend that the present enthusiasm for the publication of Lord Goldsmith's recent opinion derives from any interest in international law. It comes from the wish to embarrass Mr Blair ­ and quite right too. Mr Blair is equally entitled to resist. The Attorney General is responsible not only to the Government but to Parliament as well. It seems to me that, as a peer, he can properly be called to account not by the Commons but by the Lords.

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