The law officers in the new age of politics

There are a number of grand-sounding titles for those in the British government concerned with the law. The government's chief legal official is the treasury solicitor and Queen's proctor. The lord high chancellor and keeper of the great seal sits in the cabinet, doubling up as secretary of state for justice. And then there are the so-called law officers: the attorney general, the solicitor general and their equivalent for Scottish law matters, the advocate general.

Such wonderful Ruritanian titles, but the recent attempt by the government to deliberately break the law with the Internal Market Bill has left each of them either embarrassed or humiliated. The Treasury Solicitor Jonathan Jones comes out of this best, having promptly announced his resignation as the government's proposals became public. The Advocate General Richard Keen has also now resigned, having attempted to find legal cover for the government and realising it was impossible.

The ones that remain have destroyed their legal reputations for the sake of their political careers. It may be that Lord Chancellor Robert Buckland, a moderate Tory by background, is hanging on so as to prevent something worse being done. But to the outside world there appears no good reason for him to stay given the reasons provided by Lord Keen for his own departure.

The roles of lord chancellor and the law officers come to us from another political age. Once it was not unusual for the greatest lawyers and judges of their time to be in one of the houses of parliament and so able to serve in these official capacities. And their quasi-legal semi-detached status was respected and their independence of mind beyond doubt.

The lord chancellor was as much a representative of the judiciary in the cabinet as the other way round. The law officers told the government the hard legal facts which it needed to know rather than what it wanted to hear, and acted in litigation as guardians of the public interest.

But now the posts are too often filled with mere politicians. A number of recent lord chancellors have not even been lawyers. The demands of modern politics make it difficult for the lord chancellor and law officers to assert the importance of the rule of law against their ministerial colleagues. Perhaps the roles themselves are anachronisms.

Or perhaps not. In the face of an executive now addicted to accumulating power and removing checks and balances, there is more need than ever for someone, somewhere to be a formal brake on a government breaking the law. If the lord chancellor is to disregard their special duty to uphold the rule of law, and if the law officers too just become like other ministers, then there will be no stopping a certain sort of government, such as the one we have got.

What is needed is for a prime minister to take these roles seriously, to realise that the relative autonomy of these positions helps good government—saving the executive from its own worst impulses. But not even the famous lawyer-parliamentarians of the past would be able to help the current prime minister and his advisers in their disregard and disdain for the law. No lord chancellor nor any law officer can stand up for the rule of law when the prime minister and the cabinet do not care about violating it.