An intellectually sloppy AG

As I get older, I get more irascible. Things that barely troubled me in my youth drive me to rage. Take split infinitives. I used to laugh at the offence they gave my father. It took him hours to recover from any lapse in the Telegraph. Now I know how he felt. And, more seriously, intellectual sloppiness drives me to distraction. Alas for the attorney general, Jeremy Wright QC.

His recent speech to University College London’s law department caught me at a particularly Meldrew-esque moment.

Wright was speaking on the role of the attorney general. This is old and idiosyncratic. Its explanation is a rite of a passage for any office-holder. You can watch on YouTube his predecessor, Dominic Grieve, taking on the same topic to students at Westminster University. Before him, Lord Goldsmith went over the ground several times. However, only Wright’s efforts are proudly displayed on the attorney general’s official website. My grumpy advice is clear: take it down as soon as you decently can. The speech achieves the advocate’s nightmare: I began reading it expecting to agree with its conclusion – its argument forced me to reconsider.

Speeches on the attorney general’s role traditionally open by stressing its longevity. Wright has it ‘as almost as old as Magna Carta’. And what of now? Well, says Wright, ‘we are being told by independent observers that the attorney general has an increasingly important role in relation to the rule of law in our constitutional arrangements’. He then proceeds to look at some of the attorney general’s varied functions. The climax of his speech and the ‘question I want to raise today’ is ‘within our constitutional and legal arrangements, who should decide what constitutes the public interest?’ It is, he says, ‘a topical question’.

Had Wright addressed UCL’s students a few years earlier, his host would have been Professor Jeffrey Jowell, then head of the law department and about as eminent an administrative lawyer as you can get. He gave evidence to at least two parliamentary committees studying the attorney general’s status. He would have been entirely capable of reeling off the various controversies that we have seen in recent years about the conflicts within the role.

Its essence is as a minister in the government, its legal adviser and (particularly with the demise of the old-fashioned lord chancellor) the government’s internal advocate for compliance with the rule of law. Unsurprisingly, reconciliation of these different roles has historically given rise to difficulties – so great that in 2007 the Constitutional Committee of the House of Commons recommended abolition of the office in its current form.

Remember the fury over decisions not to prosecute in the case of BAE Systems and the ‘cash for honours’ cases? Recall the row over Lord Goldsmith’s advice on the legality of the Iraq war (which attracted the magisterial rebuff from Lord Alexander of Weedon QC that it was ‘scraping the bottom of the legal barrel’)? Ever read the Supreme Court’s judgment in R v Gul that wide discretion in the hands of the attorney general in prosecuting terrorist cases is problematic? ‘It involves parliament abdicating a significant part of its legislative function to… the attorney general, who, though he is accountable to parliament, does not make open, democratically accountable decisions in the same way as parliament’ ([2013] UKSC 64, para 36).

The practical justification for the mix of roles that history hands the attorney general, unconsidered by Wright, is his responsibility to uphold the rule of law within government. In this, Lord Goldsmith identified to the House of Commons Constitutional Affairs committee ‘three specific elements’. The first ‘was compliance with the law… domestic and international’, the second ‘respect for the courts and their judgments’ and the third ‘certain basic values… quite a number of them… to be found, of course, in the European Convention [on Human Rights].’

And there is the rub. That is why Grieve is widely seen as losing his job to Wright: he agreed too much with Lord Goldsmith. However, the attorney general’s perceived independence arising from his duty to defend the rule of law is critical to acceptance of his role in discretionary decision-making.

Wright is happier with the language of ‘public interest’ rather than the ‘rule of law’. He gets tortuously close to a latter-day variant of Gilbert and Sullivan: ‘The [public interest] is the true embodiment of everything that’s excellent. It has no kind of fault or flaw. And I, my lords, embody the [public interest].’ Personally, during recent debate on the role of the attorney general (which, in my opinion, demands reference in any serious speech), I came to the view that current arrangements were justified by their ability to place someone with an understanding of the rule of law at the heart of government. But what if no such understanding is manifest?

Roger Smith is visiting professor at London South Bank University and former director of human rights group Justice