Law officers must be apolitical politicians

Defending the rule of law while in parliament requires a kind of blingualism, Sir Edward Garnier writes

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May 18, 2017
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I came into the House of Commons as a 39-year-old barrister with a good and growing practice in defamation and media law. Friends at the Bar looked at my decision to go into the Commons with derision and pity and those I had come to know through politics could not understand why I wanted to continue in practice.

You can’t have two passports, a helpful whip told me; make your choice or fall through the cracks. It amused me to remember those words every time a parliamentary colleague sought my advice after they’d become upset at some real or imagined slight in their local paper.

The perception is that the Commons is stuffed with lawyers. There was, I accept, a time when there were far more lawyers in the Commons. When Peter Rawlinson was first elected in the 1950s he was one of several practitioners to be told that if he was seen in the Commons before 6pm it would be assumed that he had no practice and was not any good. Barristers were not expected to serve on bill committees because they had better things to do.

Harold Macmillan appointed Rawlinson solicitor-general at a lengthy meeting during which he gave him a seminar on the history and role of the law officers and then told him firmly that his first loyalty was to the rule of law, his second to parliament and his third, and very much third, was to the prime minister’s administration.

I was appointed in a one minute telephone call and although David Cameron could, if he had considered it interesting or necessary, have got to grips with the constitutional framework that allows a minister to be both a politician and a dispassionate, apolitical protector of the public interest and the rule of law, he did not. He had a slot to fill, he filled it without fuss and got on with the next item on the agenda.

I say all this not out of a sense of self-importance – there is plenty of evidence elsewhere to convict me of that – but to demonstrate that parliament and the modern politician, on the one hand, and the institutions of the law, on the other, no longer speak the same language.

“Parliament is sovereign” is too often taken to mean that parliament does not need to respect, still less listen to, the judiciary. When an unelected tabloid editor savages an unelected judge, expedience and self-preservation tells politicians to clap the editor and forget the judge. In doing so they damage the rule of law, the very thing that ensures freedom of expression.

The law officers are more than emissaries to the law mandated by the government, or dusty museum pieces in parliament to remind us of a bygone age. As Theresa May garners a great parliamentary majority on June 8, I hope she will recall what Macmillan told Rawlinson and let the law officers recover their bilingualism.

Sir Edward Garnier, QC, practises at One Brick Court chambers in the Temple; he was solicitor-general between 2010 and 2012. This is an abbreviated version of an article appearing in Times Law.

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