Speech to 2011 Legal Wales Conference
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
Speech by Solicitor General Edwarrd Garnier QC MP on the role of the Law Officers and Wales
“Ladies and gentlemen, it is a pleasure to be here this afternoon to address the Legal Wales Annual Conference 2011. May I first thank my learned friend, the Chairman of the Legal Wales Standing Committee, Winston Roddick, for inviting me to do so? Whether you will thank him for doing so by the end of this talk is another matter.
“I am not Welsh, but I have been to Wales and to Cardiff on many previous occasions as a tourist, a barrister and a politician. My aunt lives in Powys, I have spent many happy days on the north Pembrokeshire coast on holiday with my wife and children, I successfully defended a libel action here in Cardiff some years ago brought against HTV by a caravan company, and masterfully failed to have another libel action brought against its Welsh language service by Daffyd Wigley moved from Caernarvon to English-speaking Mold or Cardiff.
“I have conducted cases with and against the late, great Gareth Lord Williams of Mostyn, I have been to Her Majesty’s Prisons at Parc, Cardiff and Swansea, I have visited the South Wales CPS, and I was lucky enough to watch England play Wales in the Millennium Stadium last December but 2 more facts connect me to Wales. My cousin, Crispin Masterman, is a circuit judge here in Cardiff although sensibly he is not here this week, and I was educated in that small but noisy part of Wales that sits between the Broad and the High in Oxford: Jesus College.
“Let me tell you a little about my role as a Law Officer, the devolution landscape in Wales, and gazing at the horizon, the challenges for the Justice System in both England and Wales.”
Role of the Law Officers
“The post of Law Officer is one of the most interesting posts for a lawyer to hold. It certainly has a colourful history. For example, one former Solicitor General, John Cooke, was responsible for prosecuting Charles I in 1649 for high treason in Westminster Hall, just a few yards from my own office in just off Central lobby. As we all know, the King was beheaded in Whitehall and went to his death with great dignity and Christian fortitude.
“But if Cooke though the death of the King and the abolition of the monarchy were the end of his troubles he was wrong - things caught up with the Solicitor General on the restoration of the Monarchy in 1660 when he became the first, and I hope, the last, Law Officer to be hanged, drawn and quartered. I am sure that all of us who practice in the courts of this jurisdiction will have had our good days and our not so good days in front of saintly and not so saintly judges but I trust that you, my audience, will let me get home today with that particular record still intact!
“The Attorney and Solicitor General have 3 main roles: as Chief Legal Advisers to the Crown and the Government, as the Government Ministers responsible for the Law Officers Departments and as guardians of the public interest. We are the political and legal heads of the Government Legal Service; we enjoy a special relationship with the lawyers in every other government department which entitles them to consult us on legal issues affecting their advice to ministers as well as where different departments have differing views on some issue that needs to be arbitrated.
“We seek to preserve the professional independence, and ensure high standards of advice and professional conduct in departmental lawyers. Of course, many of the legal issues that policy development gives rise to never come to the Law Officers but we remain the protectors of the rule of law and ensure that the government and its ministers conduct their business within the law and with propriety. And in that role we are ourselves lawyers but not just lawyers: as politically appointed ministers who are also lawyers we do not give advice or lead our lawyers with party-political bias nor do we adjust our advice to suit our party’s narrow political interests, but because we are appointed and accepted as fellow ministers, as fellow MPs, as elected politicians, we can speak to our colleagues in government, from the Prime Minister downwards with a confidence, a directness and with an understanding of the environment we operate within.
“We are there to speak truth unto power and if we do not do that we are failing in our job. It is a role that has taken on a new importance now that the Lord Chancellor is no longer the head of the judiciary but the head of a large spending and political department. The same goes for government lawyers in their departments but they have the comfort of knowing that if their advice is questioned or improperly criticised they can come to us for protection or may consult us if they have doubts about the propriety of any proposed course of action in a matter for which they have responsibility. This means that they can discharge a role in their respective departments that reflects ours at their head, not as politicians but as government lawyers who are also independent professionals.
“From this position of strength they can advise Ministers on the legality of what they want to do, working up solutions when what is proposed collides with the constraints imposed by, say, the ECHR or by our obligations under EU law. These things are matters of intense political controversy as we have been reminded this week at the conservative Party conference in Manchester and it is our job and our lawyers’ job to steer those politicians who are either over-excited, hasty or in need of a headline through the legal thickets and minefields that can destroy the unwary. Our job is not always to say “No” but to suggest they do it this way rather than that way; not to put up the red light but the amber one, to warn, to cajole and to ask, “have you thought about doing it this way?” which is, I guess, of course, what all good lawyers should do for their clients.
“The Attorney General and I superintend and are responsible to Parliament for the Crown Prosecution Service, the Serious Fraud Office and the CPS Inspectorate. We do not run these bodies, we do not micro-manage their day to day activities but we meet the DPP, the Director of the SFO and the Chief Inspector, as we do the Treasury Solicitor, the non-political head of the GLS, to discuss the overall strategy of their organisations, we consider where in the most contentious cases the public interest lies and how it can best be served and we consent or not to those prosecutions that require our consent, and we refer to the Court of Appeal and frequently appear to argue about those Crown court sentences we consider to be unduly lenient as well as prosecuting contempt.
“For my part, doing a job in government so closely associated with the law and the profession which has been such a big part of my life for the last 35 years is hugely rewarding. The life of the Law Officers, although circumscribed by limitations that a real politician would not tolerate, brings one to the very centre of power even if those at the centre do not realise it. It is not the dry and fusty world of the Dickensian lawyer’s office, still less the Office of Circumlocution. Of course, the public only see the capital ships, dressed fore and aft, steaming full steam ahead on the high seas, occasionally firing their guns - even at each other.
“But below the surface and silently, and only known to a few in the law and in Whitehall, are the 2 submarines, HM Attorney and Solicitor. When we go on manoeuvres we do so to have an effect as the controversy over the Attorney General’s advice on Iraq in 2003 perhaps unfortunately reveals but there are happier examples of activities carried out in confidence for governments of both colours where the advice and restraining hand of the Law Officers has been both sensible and well received. When we surface it is usually to resign (or not), to apply to the courts in a contempt case, or to complain of an unduly lenient sentence. But my aim is not to end up like HMS Astute on the shingle bank off Skye, beached, powerless and inoperable; I am, like the man from the Inland Revenue here to help; I am but a humble seeker after truth.”
“The Government of Wales Act gives the Law Officers, along with the Counsel General for Wales (Theodore Huckle), the power to refer to the Supreme Court the question whether a Welsh Assembly Bill is within its legislative competence. So far there have not been any references but because we work closely with the Counsel General, the Welsh Government, the Assembly and the Wales Office, and they all with each other, there is no reason to expect references will be a frequent occurrence. In one sense that is a disappointment: as a member of the Bar I would relish the opportunity to argue a Welsh, Scottish or Northern Irish devolution point in the Supreme Court but by and large these difficulties are soluble without recourse to the courts. That is not to say that there may come a time when it will be sensible, indeed imperative, to ask the Supreme Court to arbitrate. No statute can anticipate every contingency so if either Wales or the United Kingdom does have to take a reference let us do so in a spirit of cooperation and willingness to hear each other’s arguments and as evidence of our willingness to make the devolution settlement work as parliament intended.
“We will act to clarify the limits of the devolution settlement, not to stultify political debate. We would do so to ensure that the boundaries of the devolution settlement here or in Scotland or in Northern Ireland are respected, not out of any desire to interfere with the policy behind devolution.
“The devolution settlement itself has changed over the last 12 years - with powers shifting away from Westminster to Cardiff. In March this year, the referendum result meant further law making powers moving from Westminster to the National Assembly for Wales. The Assembly can legislate in all twenty areas covered by the original devolution settlement, including economic regeneration, education, health, transport and local government.
“This is a significant broadening of the Assembly’s powers, but all the areas not previously devolved remain reserved as the responsibility of the United Kingdom government and Parliament. This new constitutional landscape presents interesting challenges for us all in Westminster, Whitehall, the Welsh government and the National Assembly. We need to work together, talk to each other, correspond with each other and meet face to face to ensure that our working practices take account of the Assembly’s wider powers, understanding their new boundaries.
“In July the Secretary of State for Wales announced plans to set up an independent Commission on Devolution in Wales. With the help of the Welsh government and cross-party support from the Assembly, we hope to establish the Commission this autumn. It will examine issues of fiscal devolution and accountability in Wales and will look to build a consensus around the recommendations it makes. It will take into consideration the work of the Welsh Government’s Holtham Commission, and will aim to report in the autumn of 2012.
“Once the government has considered the Commission’s recommendations, it will turn its attention to looking at the boundary between what is devolved and what is not devolved in Wales, and specifically whether to recommend modifications to that boundary in light of the Assembly’s wider powers. The Commission will aim to report on this part of its work in 2013.”
Changes - the justice system
“Despite all the constitutional reforms, criminal justice remains one area which is unaffected by the Welsh referendum. We are one jurisdiction. Reforms to our legal system and how we pay for it are implemented from Westminster and Whitehall but whether they came from London or Cardiff, in the current economic climate the Legal Aid reforms emanating from the Ministry of Justice will create real challenges. Publicly funded access to the law, to advice and to the courts is an essential prerequisite of any civilised and compassionate society and it will be even if to a different extent or in different ways than before.
“The work - work that has been carried out by hard-working, dedicated lawyers with a vocation to assist the less well off, the sick or the vulnerable for generations - will still be available but we must be adaptable and open to new ideas. Much as we would like to spend a growing percentage of public money on greater areas of legal work, we cannot afford to and thus we must face up to change and meet the challenge. It will not be easy, it may not be what we are used to or want, it has led and will lead to arguments and differences between individuals, chambers, firms, the professions, judges, and government as we seek to adapt to the new era of less public money.
“Yesterday ‘Alternative Business Structures’ became part of our life having been introduced by the last Government’s Legal Services Act. ABSs were not universally welcomed then and will not make us all dance in the street now but they will create opportunities by lifting the restrictions on the structure, ownership and management of businesses that provide legal services. They will allow lawyers and non-lawyers to work together in a single enterprise, providing clients with a service that recognises that the solution to at least some of their problems may not always involve recourse to the law.
“The external investment of funds into the legal services sector and competition will help stimulate growth which should help to maintain and even drive up the high standards of our already first class legal system. What they must not do is suborn professional standards or conduct, interfere with our duties to the court, our clients and to justice or skew our advice to please our financial masters.
“The role of the Law Society and the Bar Council and of the judges before whom we will appear will become all the more central to the maintenance of the highest standards but equally the independent firm of independent partners, large or small, the barrister in private practice will still have a vital and essential part to play in the justice system and one which I am determined to see survive and thrive.
“Other changes facing the profession include the introduction of a Quality Assurance Scheme for Advocates. The scheme devised by representatives from the Bar Standards Board, the Solicitors Regulation Authority and ILEX will provide a common and transparent assessment system for advocates in the higher courts whatever branch of the profession they are from. It will allow clients to pick the most appropriate advocate - whether barrister, solicitor or ILEX practitioner- to represent them.
“There will inevitably be competition between solicitors and barristers for advocacy work but competition is at the heart of our two professions and neither should feel threatened by it. Competition, backed by high standards, properly assessed and regulated, is a good thing. Let us embrace it. These reforms bring into sharper focus the responsibilities of all of us in the legal professions to help shape the change and to adapt to change.
“The circuits have always been central to the professional and social life as well as the training and development of the Bar. It is through the circuit leaders and presiding judges that we talk to each other and to the judiciary. I am sure the Wales and Chester circuit will play its part in maintaining and enhancing the profession in Wales, and helping those in need of guidance and support as we navigate our way through these difficult economic times and this period of change. The Attorney and I take our roles as Leaders of the Bar seriously and we are there to help, to advise and to speak to government if needed.”
Changes - the Crown Prosecution Service
“The reforms to the justice system will not only affect the private sector. The Crown Prosecution Service too is facing change. The inexorable rise in the numbers of in-house advocates at the expense of those outside has ceased as the Attorney and I have required the restoration of a proper balance between the private referral profession and the CPS. The comprehensive spending review touches every government department, ours included, as we implement the government’s agenda to reduce the massive budget deficit.
“This year the Crown Prosecution Service introduced a new scheme for the delivery of prosecution services in court. All advocates undertaking prosecution work from this month onwards must be members of new, quality-controlled CPS Advocate Panels. The panels will be open to all barristers and solicitor advocates, and panel members will complement and work alongside CPS in-house advocates.
“Although the overall number of advocates on the panels will be reduced, selected advocates will have more opportunity to undertake prosecution work. This initiative will help maintain the high standards of advocacy amongst prosecutors and ensure justice is delivered in Court. We will not tolerate poor advocacy from either private or employed advocates acting for the prosecution and those who cannot come up to scratch, be they in or outside the CPS, will not be offered the work - nor should they.
“The new Crown Prosecution Service Wales Area, as part of the CPS Senior Management Restructuring Plan, was introduced in April earlier this year. There will continue to be eight CPS offices across Wales (Wrexham, Colwyn Bay, Newtown, Camarthen, Swansea, Merthyr, Cardiff and Cwmbran) in order to ensure the effective delivery of services across Wales. We are, however, increasingly working in the digital age and the Wales is one of the CPS areas leading the drive towards a more efficient and predominantly digitalised working environment.
“For example, Dyfed-Powys was the first area to use a ‘digital file’. “Advance Information” is now provided ahead of first hearings in the Magistrates’ Court in electronic format both to the court and, where necessary, to Probation and Youth Offending Teams. This will make it easier and faster to get at information, reduce unnecessary adjournments and increase the overall efficiency of the administration of justice.
“The Crown Prosecution Service has also developed mechanisms for more effective cooperation with the police. Witness Care Units, for example now operate on a digital basis and have the capacity to move work between Units. Court files are now increasingly being prepared conjointly by the CPS and the police rather than wasting time and resources on creating multiple files which often never get read.”
“We are all facing difficult challenges in the current economic climate. Present circumstances have compelled us to look very hard at the current way of doing things. But reform would be needed even without an eye-watering budget deficit to worry about - to address some of the weaknesses present in the way that the Justice system operates, and to build on its strengths.
“It’s at times like this, when one has a difficult case to make, that I draw comfort from the strength and resilience of the traditional legal hack. Perhaps you know of the case in the Court of Appeal in which the appellant’s counsel was making heavy weather of a pretty hopeless criminal appeal. The presiding Lord Justice, beginning to lose patience but not his manners, stopped counsel in mid-stream.’Isn’t the difficulty you face, Mr Smith, that the evidence before the jury showed that your client was driving the van when it was stopped by the police, that in the back of the van was a large cardboard box all over which were found your client’s fingerprints and inside which was found a vast quantity of Class A drugs?’ Mr Smith replied, ‘Let me put it this way, my Lord. Here on the bench beside me is a copy of Archbold. It is my Archbold and I brought it here. But no one has ever suggested that I know what’s in it.’