“To be a law officer is to be in hell”  

 

So said Sir Patrick Hasting rather a long time ago….

And today – what is the job of Attorney General like?

The Attorney General’s role goes back to at least 13th century apparently, as an “attorney of the crown”. Probably it is much earlier if it had been possible to keep any reasonable records because of the nature of the appointment as such a trusted adviser to the monarch.

The first professional attorney we know of was Laurence Del Brok who was paid to prosecute cases for the King because the King could not appear in cases where he had an interest. And that past workload which has been reported as “incredibly heavy” continues to be so to the present time.

By the nineteenth century, the attorney’s appointment was no longer a lawyer in private practice.  The post became that of a dedicated representative of the government. By the time of Sir Patrick Hastings the role had moved from being a formal representative of the Crown or the government in the courts to that of a major political post with very special responsibilities. It’s still important to recall that the attorney is a non-cabinet minister (who attends cabinet- a very British appointment!) although this is by convention. Interestingly, between the time of F E Smith (Lord Birkenhead) in 1915 and Douglas Hogg (Lord Hailsham) in 1928, the attorney did sit in the cabinet.

Today, the modern practice is for the attorney to attend cabinet to advise the government on the best course of action legally to be taken depending on the nature of the political issue under discussion. And, it can be seen that it is more preferable for the attorney to be excluded as a ‘cabinet member’ in order to draw a distinct line between the attorney and the political decisions which he or she are giving by way of legal advice. So it is a bit of a modern compromise which does seem to sit very well with the current office holders.

The Government’s Personal Lawyer 

Today, then, it’s a fascinating role for an MP lawyer to perform as the government’s “personal lawyer”… breaking the bad news to the cabinet, so it is much the same as dealing with a client, really! And, of course, you do not get tagged with being a cabinet member… at least that is the theory!

We have seen interesting occupiers of that office over the centuries and have given the name “Attorney General” to many different legal jurisdictions the world over where some notable names of history crop up (Bobby Kennedy to name just one under his brother JFK). And I have met quite a few of the legal officers over my forty years in politics and the law, so has the role and the legal personality changed much at all in that time?  “No” and “Yes”, in all probability.

The formal duties of the attorney include what is rather quaintly described as “superintending” the Crown Prosecution Service, the Serious Fraud Office, and other government lawyers with the authority to prosecute cases. The job also covers the superintending of the Government Legal Department which many will remember formerly as the Treasury Solicitor’s Department. He also oversees HM Crown Prosecution Service, the Service Prosecuting Authority, and the strategic body, the National Fraud Authority.

And so it was with some eager anticipation that I met the current attorney, Jeremy Wright, recently in his office in the Commons. Jeremy is also the Member of Parliament for Kenilworth and Southam in Warwickshire. For historic purposes, the post of attorney is stated as “emerging” around 1243, when professional lawyer Del Brok (of course he was, and I hope he got paid on time) was hired to represent the monarch’s interests in court. The appointment has developed into a political – and a demanding – role with Sir Patrick Hastings writing memorably that ‘to be a law officer is to be in hell’.

“To be a law officer is to be in hell”

Well I did not see much of that, the brimstone and the very hot temperature that is (the civil service radiators had been turned down), when I entered the AG’s office tucked behind the central lobby.  Jeremy is a very modern attorney general and we had met before during his time as Prisons Minister in the last Parliament so he comes to us at “The Barrister” magazine readers with some previous.

Well, is he “in Hell”? ‘Far from it’, says Wright, when we discuss what he does and his future plans “in the hot seat” after his steep learning curve.  He clearly relishes the role and its heavy workload with that advocate’s gloss we would expect, and he has the air of pleasantness and “unstuffability” which is possibly why the PM appointed him at such a young age! I can only conclude that Sir Patrick had had a bad day!

Wright has been in post for around 18 months with his deputy, Robert Buckland QC MP, the solicitor general. Both are young (Wright is one of the youngest attorneys since the 1600s), from the provincial Bar, and began practice in the criminal courts on circuit. It is law officer work that is fascinating for any barrister as his portfolio illustrates.  The attorney general is officially the leader of the Bar of England and Wales and he or she presides over its annual meeting when time permits. He is also the Advocate General for Northern Ireland but that is another story.

The attorney and the solicitor general attend Bar Council meetings and events, such as the Bar Conference regularly despite their workloads.   Both officers review all the unduly lenient sentence cases, some 400 a year, a ‘relatively steady number’, where about 80 per cent of sentences are changed. A recent proposed reform from the attorney is beginning, as a pilot, for a broader cadre of counsel to pursue cases of undue sentence leniency, rather than just leaving proceedings in the hands of treasury counsel. And it seems this proposal has been met with approval so far.

Closer working relationships

I suggested that this might be a taste of things to come, leading to a ‘closer working relationship’ with the advocate general for Scotland, Lord Keen of Elie QC. Another area is where the attorney general ‘straddles’ departments, offering legal advice to ministerial colleagues based on their requests to him – advice that is – ‘given in a way which is comprehensive and more likely to be accepted’ coming from his department.

 The days where individual departments now speak to each other has arrived, certainly as far as legal advice is concerned, after years of little liaison. On hard cases, Wright’s view is that where there are difficulties he ‘will never compromise on the integrity of the advice given’, which illustrates very much what he sees as the independence  of his role within government:  ‘It is the need to know, and not what you want to hear.’ Much the same, then, as the approach taken by a practising barrister, only your client is the government. The attorney general does not attend court as often as some of his predecessors did, although the solicitor general does appear regularly.

Standards of Advocacy

So, what of today’s advocacy standards? The law officer team, for that is what they are, are very much a modern product of the development of a high-quality Bar for England and Wales. Both officers have regular talks with the judiciary and the profession ‘to stand up for the interests of the client’, retaining the ‘cab rank’ principle, something Wright says ‘we must be proud of at all times, especially as the Young Bar is going through tough times as we maintain the highest standards of advocacy’. He added that “we can be justly proud that we produce advocates of such high quality today”.

Wright and Buckland are very much products of the new vocational courses which the legal profession now offer those reading for the Bar. Both were called to the Bar at the Inner Temple and established highly successful practices at the Criminal Bar after much more stringent pupillage than people of my vintage.

And a good thing it is, too, for both men understand the changing nature of the way we are now working whether it be substantial reform of the National Health Service or legal aid changes (remember both lawyers are MPs with a hefty post bag of queries from constituents to keep them up to date with the most pressing issues of the day.)

I came away from this conversation realizing the reality that, like the changing way we train for the Bar, change is necessary elsewhere and we have the right people for the job understanding the art of the possible which is what we actually practice.

Lawyers should therefore be in no doubt that there is a reforming wind blowing through our corridors at the moment for this parliament – and it is quickening its pace. Thank you, Mr Attorney for modernizing Patrick Hastings’ rather unfortunate utterance.

Jeremy Wright QC MP in conversation with Phillip Taylor MBE, Reviews editor of “The Barrister”

 

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