The Attorney-General, Lord Goldsmith, QC, advises the Government on the law, decides on prosecutions as guardian of the public interest, and acts as a criminal justice policy Minister. The office that Francis Bacon found “the painfullest task in the realm” is at the top of the agenda for constitutional reform.

In the past month, Lord Falconer of Thoroton, Secretary of State for Constitutional Affairs, has warned that the role is no longer constitutionally sustainable, and Harriet Harman, the Constitutional Affairs Minister, has argued that public trust has been undermined by the failure to publish legal advice.

The role of the attorney-general involves issues of great public importance and political sensitivity: Lord Goldsmith’s (unpublished) advice on the legality of the Iraq war, his endorsement of the decision by the Director of the Serious Fraud Office to end an investigation into corruption in arms sales to Saudi Arabia and the pending decision on whether to prosecute for possible offences relating to cash for honours. Even if a political appointee can separate the political interests of the party from the public interest, it is almost impossible to be seen to do so. In public policy, as in law, appearances matter and justice must be seen to be done.

The defence of the present constitutional arrangement is that there is a public benefit in having an attorney-general who is a political insider. Governments often need to be told that what they want to do is unlawful. Professor Jeffrey Jowell, QC, suggested in a lecture last year that “ministers are more likely to accept such advice because it comes from ‘one of them’ ”. There is also, as Lord Goldsmith emphasised in his evidence to the House of Commons Constitutional Affairs Committee this month, an advantage in having decisions made by someone who is accountable to Parliament.

Lord Goldsmith has done his best to ensure the avoidance of any appearance of bias on whether to prosecute in the cash-for-honours affair: he has given an assurance that he will seek advice from independent counsel and, in the event of a decision not to prosecute, he would publish the advice. But the cash-for-honours case demonstrates, if there were any remaining doubt, the conflicts of interest that inevitably arise in the performance of a legal function by a politician. And the controversy over the advice on the legality of the Iraq war illustrates how difficult it is to satisfy the public that a political appointee is giving an objective legal opinion.

The central questions, then, are whether the functions of the attorney-general could be transferred to a nonpolitical officeholder without undermining the influence of the attorney-general over ministerial colleagues and without removing accountability to Parliament. There are a number of steps that should be taken to strengthen the independent role of the attorney-general.

First, there should be a convention that the Prime Minister appoints someone who is not politically active. It should be as inappropriate to appoint a political supporter of the Government to be attorney-general as it would be to appoint such a person to be the Lord Chief Justice or Governor of the Bank of England. There should be an independent element in the appointment process, as with the senior judiciary. Political “nous” can be a job requirement without the appointee having to be a political ally of the Prime Minister.

No sensible minister would ignore the advice of such an independent attorney-general, and no competent attorney-general would fail to persuade ministers of the folly of defying such advice. Ministers currently accept the legal views of Treasury Counsel, who are not political insiders.

Secondly, the independence of the attorney-general demands security of tenure. Appointment for a period of five years irrespective of a change of government (and subject to removal, like a High Court judge, by Parliament) would ensure that no attorney-general need worry — or appear to be worried — by the prospect of the next reshuffle.

Thirdly, to ensure accountability, the attorney-general should automatically be a member of the House of Lords and regularly report to the Constitutional Affairs Committee of the House of Commons.

Fourthly, because the attorney-general’s ultimate client is not the Government but the public, the attorney-general should have the power, if necessary, to publish his or her legal views on important matters, while maintaining the confidentiality of discussions with ministers.

Fifthly, the political functions that the attorney-general currently performs as a criminal justice policy minister, including superintendence of the Crown Prosecution Service and other prosecuting authorities, should be transferred to a political Minister for Justice as they are incompatible with an independent legal role.

Reform of the office of attorney-general is inevitable. The only questions are how extensive the changes will be, and when they will occur.

The author is a practising barrister at Blackstone Chambers in Temple and a Fellow of All Souls College, Oxford

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