UCL Comment: A power best separated

Professor Jeffrey Jowell [UCL Laws], 'The Guardian' The attorney general, now Baroness Patricia Scotland QC, has two principal roles.

First, she provides legal advice to government; second, she "superintends" the prosecution service, which includes the power to halt any prosecution. In many countries these roles are performed by a distinguished lawyer who is not a practising politician. Here, however, the attorney general is a member of the government who also regularly attends cabinet. This dual legal-political role is inherently vulnerable to the appearance of conflict of interest and bias, as was demonstrated by the decisions of the previous attorney, Lord Goldsmith, on the legality of the war on Iraq, the "loans for peerages" affair and dropping corruption charges related to the BAE Systems arms-dealing case.

Whatever the reality, these examples show appearances matter. It is a principle of public law that our decision-makers should stand down from making decisions which could induce a perception of a "real possibility of bias". …

It is important to have a lawyer at the heart of government to identify and promote the rule of law. …

Freed from political commitments, an independent attorney here would have more time systematically to check the legality of decisions emerging from government. …

The Blair government recognised the inherent tension in the multiple roles of the then lord chancellor, and the need to create a new supreme court so as to separate out the legal functions of the House of Lords. The Brown government should, similarly, act decisively to ensure that government's legal advice is rooted in confidence and can no longer be tainted by the appearance of political convenience. …