Harriet Harman

Labour Member of Parliament for Camberwell & Peckham

Rebuilding public trust - Open and Accountable legal advice to G


Renewing New Labour : Rebuilding public trust

Rebuilding public trust in Labour, in government and in our public institutions is central to our renewal.  It is a concern much discussed within and beyond the Labour Party.

People are no longer prepared simply to trust their elected representatives by virtue of their election. They have to see what we are doing so they can judge for themselves. This is part of a longer term “secular trend”.

This can be addressed in a number of ways

Ø       More independence in decision-making – such as independence of the Bank of England giving confidence that interest rate decisions are made solely to comply with certain parameters laid down by government.  But even decisions taken by the independent Bank of England to meet those criteria are made transparent by publishing the minutes a month after the meetings.

Ø       More openness in decision-making.  We have already made great strides in this direction by, for example, introducing the Freedom of Information Act.

Ø       Giving people a clear involvement in decisions which affect them.  Devolution has gone a long way to address this.

Ø       Reducing the areas where the government says – “ we can’t discuss it with you, you just have to trust us”  There is a need as I have argued before, to involve people more in debate around foreign policy, in the big questions about what should our relationship be with US and Europe.

There is also a need to rebuild confidence in those institutions which are necessary in our democracy but which have seen their legitimacy challenged and which have suffered a loss of public esteem under that challenge.

Ø       We need a respected and independent judiciary.  We have taken judicial appointments out of the hands of the Lords Chancellor done in secret, to a judicial appointments system which works in an open way according to published criteria.

Ø       We need a respected and independent appellate system.  We have legislated to take the House of Lords Judicial Committee out of the legislature and make it a separate appellate court – the Supreme Court.

Ø       I strongly support our moves to make the House of Lords elected rather than dependent on appointment so that we can have a legitimate second chamber.

There has been a sustained critique of the role of the Attorney arising, to a great extent from the fact that it is complex and involves the office holder wearing a number of different “hats” at any one time.  Legal advisor to the government, legal advisor to parliament, lead minister for the prosecutions service, decision-maker in certain cases (eg consents to prosecution and referring Unduly Lenient Sentences to the Court of Appeal)  In these different roles the Attorney (and  Solicitor General) sometimes have to act quasi judicially, in the public interest. And in other aspects of their role they act as a Minister and member of the Government.

I am grateful to have had the opportunity, when I was Solicitor General, to have discussed this matter with most of  former Attorneys – of both parties.  The dual roles and multiple functions have been carried out with integrity and are by the current attorney.  The question is not, is the Attorney capable of acting in the public interests as opposed to the government’s interest – but will people believe that to be the case.

There are two issues here :  (a) what should the public be allowed to know about the decisions taken by the Attorney and (b) should the Attorney be no longer a political appointee and member of the Government but instead be “independent”?

The Attorney has already become more “independent” in that the current office holder Lord Goldsmith is a career lawyer rather than a politician and  an appointee to the Lords rather than an elected member of the House of Commons.  On his appointment no-one questioned his qualifications to hold the office as a pre-eminient lawyer of his generation.  Yet even despite these personal qualities and his obvious integrity, the office of Attorney has increasingly been challenged.

This is a question which has been wrestled with by other countries who have a parliamentary system and an Attorney.

We have to bear in mind when looking at the desirability of independence, the question of the importance of accountability.

Perhaps a solution we should consider is greater transparency rather than sacrificing accountability to independence.

When I was Solicitor General, for 4 years, I formed the view that whilst there are some issues at some stages in individual cases which need to be confidential, it is hard to justify keeping confidential, the advice that is being given by a public office holder (the Law Officers), in the public interest, to a public authority (Government Departments)  which then acts in reliance upon it .

It is not enough for government ministers to say “we are advised that it is lawful”.   Backbenchers, let alone the wider public, want to see for themselves what the arguments are.  I think that this would be the case even were the Law Officers to be made “independent”.  But it is certainly important so long as they are political appointments accountable to Parliament.  It is a contradiction in terms to have an accountable office holder who is not able to publish to those to whom he is accountable the advice he has given.

Because Law Officer advice to government is confidential, whilst law officers answer questions in parliament, the convention is that they will not answer questions about their legal advice.  The responsible departmental minister who has been advised by the Law Officers, will, when questioned, simply say that he/she has been advised that the action proposed is lawful but need not set out the basis of the argument. This is only satisfactory if there is a reason for the non-disclosure, such as an individual’s personal privacy, matters under criminal investigation, commercial confidentiality or national security.  But matters of public policy which do not involve any of these should not be kept secret. For public trust to be maximised, secrecy must be minimised.  This is not just a question of public confidence.  The belief behind our commitment to the Freedom of Information Act is not just that the public are entitled to know what is done in their name and at their expense, but also that decisions that are made publicly and for which the decision-maker is accountable are likely to be more thoughtful and better quality decisions.

In New Zealand, they have a hybrid system, with an accountable, elected Attorney supported by an appointed career lawyer Solicitor General.  The Attorney makes their advice public on their website.  They have accountability and transparency – with the independence element being provided by the Solicitor General.  In this respect the relationship is analogous to our attorney and the appointed Director of Public Prosecutions.

There is now a Constitutional Affairs Select Committee inquiry into the role of the Attorney General and no doubt the questions of openness and accountability will be at the centre of their deliberations.


Harriet Harman MP
Colchester Labour Party
Saturday 3rd February 2006

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