As I write, David Cameron is the new Prime Minister forming a government that probably will be a coalition – but we’re not yet sure, quite. I type while watching the BBC’s Newsnight and waiting to hear confirmation that Liberal Democrats will join the Conservatives in office. But already, journalists and bloggers are speculating about who will get what job in the new administration.
Here at Head of Legal I’m naturally enough concerned about the legal jobs, especially. Justice is an important post, and the new Lord Chancellor will be responsible among other things for constitutional change including any change to the Human Rights Act (something I predict will remain in place by default, Tories and LibDems being unable to agree on change) and for the referendum it appears we’ll have on a new voting system, as well as penal policy. I’d be surprised if the LibDems got this prize.
Most political commentators however vastly underrate the importance in government of the Attorney General, which in my view is the more important and influential law-related post in government. I’d certainly want it over Lord Chancellor, even if it’s not a Cabinet post (which in my view it should be). Superintending the CPS is a serious responsibility, and under Labour, the Attorney had a policy role in the criminal justice field. Far more important, though, is the Attorney’s role as the government’s legal adviser, a role which allows the holder to decide policy disputes between departments (a key role especially in this administration), influence enough to determine the content of legislation in every policy field and the UK’s negotiating stance in Europe and, as we saw with Iraq, even effectively decide issues of war and peace. It really matters who gets the job.
The first point to make is that there are two Law Officers, not one. In a coalition government, especially one between two parties who take quite different views on the role of law and rights in government, and on this country’s relationship with Europe, I’d expect the Attorney General to come from one party and the Solicitor General from the other. The work each minister undertakes depends very much on personalities and the preferences of individuals: in my day in government, Ross Cranston as Solicitor General carried out a lot of advisory work under Lord Morris as Attorney, while Harriet Harman and Mike O’Brien were less legally-orientated ministers under Lord Goldsmith. There’s no reason why both Law Officers should not advise or even collaborate to produce agreed legal advice if they see fit. Whether they need to do this, and whether they will be able to, will depend on the level of trust between them and between the parties more broadly. If it doesn’t work well, more pressure will fall on government lawyers and more reliance will be needed on outside counsel.
The current shadow Attorney is Edward Garnier, who might well get the post. Another Tory possibility is Dominic Grieve, and Jonathan Djanogly has I think in the past shadowed the Solicitor General post. The biggest LibDem legal beast is Lord Lester, but I’d be astonished if he were appointed. Human rights is an area of serious potential policy tension in this new government, and Lord Lester is so closely associated with a pro-human rights campaigning approach that I doubt, frankly, that David Cameron could have confidence in his advice. He got pretty quickly to the end of his tether as Gordon Brown’s “goat”, after all. I doubt he’ll be milked again even if he could stomach working with Tories.
Another prominent Liberal Democrat lawyer is Lord Carlile, who presumably can no longer serve as the government’s independent reviewer of terrorism legislation, and as a more traditional barrister less obviously associated with the human rights view of the world, might be an option. Finally, the veteran LibDem lawyer Lord Goodhart comes to mind. David Howarth, the Cambridge academic lawyer, might have been a runner but stood down as MP for Cambridge this time. Presumably that means he’d rather be writing and lecturing that advising the government as Lord Howarth pending an elected Lords.
I suppose it might be a temptation to avoid partisan division and, killing two birds with one stone, to nod to the “independent Attorney” lobby, by appointing a non-party figure – in which case the crossbench peer Lord Pannick, probably the leading public law barrister of the last twenty years, would be the obvious choice.