Evidence submitted by the Rt Hon Lord
Mackay of Clashfern KT PC
I was the Lord Advocate of Scotland from 1979
to 1984, a judge of the Supreme Courts of Scotland from 1984 to
1985, a Lord of Appeal in Ordinary from 1985 to 1987 and Lord
Chancellor from 1987 to 1997. The views I express in this memorandum
are my own personal views based on that experience and are not
influenced by nor a reflection of the Conservative Party's views.
The Attorney General has for many years been
the senior legal adviser to the United Kingdom government and
the senior member of the Government who is not a member of the
Cabinet. He is also the senior legal adviser to both Houses of
Parliament. He superintends the prosecution system in England
and Wales. Amongst many other functions he is responsible for
the representation of the United Kingdom government in the courts
in England and Wales and in international courts and tribunals.
Sometimes appearing himself, in some of the other more important
cases appointing those who represent the Crown and generally making
arrangements for that representation. I regard this as an important
part of the Attorney General's functions.
When I was Lord Advocate I twice represented
the United Kingdom Government in the House of Lords on the nomination
of the Attorney General, on one occasion in the European Court
of Human Rights and on several occasions in the European Court
of Justice. To appear in court is to my mind an important function
of the law officers in appropriate cases.
During my time as Lord Advocate the Cabinet
was concerned among other things with the legal position of civil
servants contemplating withholding their services, with relations
with the European Community and in particular the possibility
of obtaining a rebate on our contributions to the Community and
with the legal questions arising in connection with a miners'
strike. I was invited together with the Attorney General to a
number of meetings of the cabinet concerned with these matters
since the Lord Advocate was responsible for advising the Government
on the law of Scotland and together with the Attorney General
on the law of the European Community. In my experience the discussions
in which the law officers then took part would not have been suitable
unless the law officers themselves were members of the Government
and willing to participate within their expertise in the development
of appropriate Government policy. On the other hand the legal
advice which the Cabinet required needed to be independent and
likely to stand up in arguments in court.
Prior to the Constitutional Reform Act of 2005
the Lord Chancellor was the senior judge in the United Kingdom
and indeed generally recognised to be the senior judge in the
Commonwealth. He was not a legal adviser to the Government but
was responsible in my view for seeing that the Government took
legal advice when this was appropriate and that the Government
paid proper respect to the advice so given. Legal advice to the
government was then and still is the province of the law officers.
In my view the changes in 2005 make it even more important that
the senior legal adviser to the Government should be a member
of the Government with free access to the Cabinet documents, with
opportunity to attend Cabinet where appropriate and with the authority
and experience that the Government could not easily ignore. He
should also be accountable to Parliament for the way he conducts
his office and the most direct method of such accountability is
by being a member of parliament. As senior legal adviser to Parliament
it is highly desirable that he should be able to address Parliament
as one of its members. The personal accountability of an individual
to Parliament for the way he conducts public office is an important
principle of our constitutional law and to undervalue it would
be a great mistake and likely to undermine the integrity of our
system in the longer term.
Although the functions of the Attorney General
and the Lord Advocate in their different jurisdictions are not
identical the principles underlying the offices of Lord Advocate
and Attorney General are the same. In Scotland the Lord Advocate
is directly responsible to Parliament for prosecution decisions,
before devolution, as a member of the UK government not in the
Cabinet, since devolution to the Scottish parliament as a member
of the Executive. The arrangements were discussed and legislated
upon by the Labour government in the Scotland Act. It would seem
strangely inconsistent for them to be renounced now.
The status of the Attorney General in the public
service has made it possible to secure in this role Queen's Counsel
of great distinction and experience. The present Attorney General
is an outstanding example of this. As Queens Counsel before I
became Lord Chancellor, he was Chairman of the Bar during my time
as Lord Chancellor a demonstration of the confidence of the profession
in him. He has high standing in the profession and wide experience
of the practice of the law.
If an idea were to gain prevalence that a person
cannot be trusted to take difficult decisions where there are
strong considerations tending to pull in different directions
it will be a sad day for the standard of our public life. This
would be not only in relation to the office of Attorney General
but in relation to the many decisions which Secretaries of State
have to take for example in planning and other matters where they
are considered to act in a quasi-judicial capacity.
I believe that the principles on which the office
of Attorney General rests are sound, that it fits well into our
system of government, that it has stood the test of time and should
be retained.
February 2007
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