NEWS

The Painfullest Task in the Realm

Lord Peter Goldsmith debates the merits of the dual political and legal roles of the office of the Attorney-General of the United Kingdom and explains to the SLG that his term as the Attorney-General was no more controversial than those of his predecessors.
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The setting for the interview with Lord Goldsmith is the bar room of the Supreme Court. When I arrive at about half past four in the afternoon, the bar room's caretaker and icon, Uncle Choo, warns me that the air-conditioning has already been turned off and that that would eventually create "a smell". Sufficiently jolted by this information, I immediately alert the Law Society of the impending malodorous predicament and moments later, the refreshing chill of cold breeze puffs through the air vents. At this juncture, Lord Goldsmith arrives. He is wearing a sharp suit and is immaculately groomed, save for a tuft of loose hair that strays down his forehead, the minor dishevelment giving him a relaxed appearance. He is affable and upon seeing me, starts the conversation by saying, "So you are the one who is going to grill me?" We exchange handshakes and make our way to the back of the room for the interview.

The Right Honourable Lord Peter Goldsmith QC is here at the Law Society's invitation as the guest speaker to deliver the Law Society Biennial Lecture 2009. His lecture, as stated in the publicity materials for the event, is entitled A Life in the Law: Home and Away. Lectures of an autobiographical nature are inherently challenging and can only be sustained by the infusion of rich and expansive experience and such experience, Lord Goldsmith has in abundance. His curriculum vitae displays a glittering career. Born in Liverpool in 1950 to a solicitor father and pharmacist mother, Lord Goldsmith attended Quarry Bank High School in Liverpool, which (reportedly) has the curious distinction of being the same high school attended by arguably Liverpool's most famous son, John Lennon. He thereafter read law at Gonville & Caius College, Cambridge University, where he obtained a double first class honours degree. After a Master's Degree at the University College of London, Lord Goldsmith was called to the Bar at Gray's Inn, after which he commenced legal practice at Fountain Court Chambers in London. His accolades in professional life include being appointed Queen's Counsel at the tender age of 37 in 1987, the Chairman of the Bar of England and Wales in 1995, a Labour Party Life Peer in 1999 and the Attorney-General of the UK from 2001-2007. His present position is that of the European Chair of Litigation at Debevoise & Plimpton LLP.

My opening gambit for the interview is to lead Lord Goldsmith into a discussion of his intriguing decision to join an international law firm as a partner following the end of his tenure as the Attorney-General, rather than to return to a set of chambers as one would expect of a leading silk. I introduce the topic tangentially by informing him that another leading silk from the United Kingdom ("UK"), Jules Sher, QC, who incidentally was the last QC to be admitted in Singapore to appear before the courts, once told me that in his view, "the golden age of the QC" in the UK was effectively over. Lord Goldsmith disagrees with this and says that while he is happy to accept that there have been various changes that may have had an impact on QCs, such as a reduction in opportunities for appearances by QCs outside the UK (Singapore being an example) and the increase in rights of audience for solicitors particularly in the area of criminal practice, the "vast majority of cases are still argued by barristers in the High Court, the Court of Appeal and the House of Lords." He then goes on to describe the main change that he sees in the legal landscape: "Law has become more international. You see it in the way that lawyers seek to practise in other countries … As a government minister, I have seen how globalisation has affected the practice of law. Transactions are cross-border. If a firm is to provide a proper service, it must deal with cross-border problems. This is both a challenge as well as an opportunity." The flow of the conversation leads Lord Goldsmith to reveal the reason for his decision to join an international firm: "I decided not to go back to chambers as I wanted to try to see if the global law point was true. I still appear in court but do the other stuff as well, seeing clients originally and considering what advice to give them: QC as well as senior partner."

We are at this juncture interrupted by the arrival of tea and food, a sumptuous spread of cream tarts, grilled chicken strips, cutlets with a rich black sauce and Chinese noodles, all served up by the gracious hosts from the Law Society. Lord Goldsmith looks overwhelmed by the magnitude of the gastronomic encounter and gingerly picks up a cream tart with his fork. The break provides the opportunity to move the interview into more complex terrain: Lord Goldsmith's term as the Attorney-General of the UK.

The office of the Attorney-General in the UK has been described as being at the junction between law and politics. The Attorney-General is both the legal adviser to the government, as well as a politician and a Member of Parliament. In his capacity as a lawyer, the Attorney- General superintends various offices such as the Crown Prosecution Service and takes decisions on prosecutions and civil actions in the public interest. As a politician, the Attorney-General, being a Minister, attends all Cabinet meetings and is subjected to the party whip. It is the latter political function that distinguishes the Attorney-General of the UK from many other jurisdictions including Singapore and has been the subject matter of intense debate and scrutiny in the UK for its perceived impact on the constitutional principle of the separation of powers and for the practical problems the office's often misaligned roles create. The difficulties involved in performing multifarious roles caused Francis Bacon, the famous English Attorney-General and legal philosopher of the 17th century, to describe the office of the Attorney-General as "the painfullest task in the realm."

Lord Goldsmith's term as Attorney- General is generally regarded as one of the most controversial in recent history due to a series of incidents that brought the conflicts that are inherent in the Attorney-General's position into sharp focus. I probe this topic by mentioning to Lord Goldsmith three of these well-publicised incidents: his legal advice that sanctioned the UK's invasion of Iraq, the halting by his office of the investigation into alleged bribes by BAE Systems to the Saudi government and his injunction against the British Broadcasting Corporation ("BBC") to suppress a report of the "cash for honours" scandal (which involved allegations of peerages being offered to donors to the Labour Party), all of which attracted intense scrutiny from the British media and put Lord Goldsmith in the political spotlight, amidst speculation that his decisions were politically influenced. I then cite an article in the popular UK tabloid, the Daily Mail, which labelled him "The Lord of Controversy", as a result of these incidents. Having tackled these issues before in the UK, Lord Goldsmith is in familiar territory and reacts with a dismissive smile: "The Daily Mail is not known to be sympathetic to the Labour Party." He adds that "the fundamental point" and "the real reason" for the controversy surrounding the role of the Attorney-General in the UK is that issues that are "big and difficult" and are therefore prone to controversy are precisely the issues that are referred to the Attorney-General's desk for resolution.

I persevere and ask him whether he would accept that his term as Attorney-General was more controversial than most of his predecessors. Lord Goldsmith expresses his disagreement and lists various examples of controversial decisions of his predecessors, which include the prosecution by Sir Patrick Hastings of the editor of the Daily Mail for sedition, the prosecution of the civil servant Clive Ponting following disclosure of information relating to the sinking of the Belgrano and the "Arms to Iraq" scandal.

None of these precedents appear to me, to be in Lord Goldsmith's league and so I return to the theme of the Attorney-General's role in the UK as lawyer-politician and mention to Lord Goldsmith that many commentators say that the controversies that plagued his term were not his fault, but rather the product of the inherent tensions in the position of the Attorney-General. Lord Goldsmith straightens his posture and makes his submission, "The position carries particular advantages. When giving legal advice, fellow ministers accept and welcome your advice because they know that you are one of them. It enables you to understand the political context in which issues arise. Understanding political considerations that the government has in mind helps you to understand the legal position … . There are different models but the English model does work well."

Lord Goldsmith goes on to identify public accountability, derived from the fact that the Attorney-General is a member of one of the two Houses of Parliament, as the main constitutional safeguard for the system and points out that "nothing concentrates the mind so well" as being summoned to Parliament for questioning by the members. He adds: "What is important is that the Attorney-General is accountable. Accountability is best performed by accountability to Parliament. The only way is to make the Attorney-General a Member of Parliament. Secondly, it is important that the Attorney-General is a Minister. This gives a sense that you are on the inside even if your advice is unwelcome. George Bush got his advice from a secret group of in-house counsel. If it was a civil servant, he would have taken advice from someone else."

We are joined at this stage by the President of the Law Society, Mr Michael Hwang, who expresses his intention to sit in on the interview. Lord Goldsmith greets him with a warm smile and a handshake, a sign perhaps of an old friendship. I move on with the interview to address what many people call Lord Goldsmith's political legacy, which ironically was his legal advice relating to the legality of the invasion of Iraq.

Lord Goldsmith's advice in 2003 on the legality of the invasion of Iraq developed into a highly politicised issue at the time. The issue arose from the perceived differences in his original advice written on 7 March 2003, which was subsequently leaked to the media, and his final advice, written on 17 March 2003 which was submitted to Parliament. The controversy lay in the fact that in his original advice contained in the leaked document, Lord Goldsmith appeared more equivocal about the legality of invading Iraq without need for a further United Nations Security Council resolution providing authorisation, than in his advice that was submitted to Parliament. This led to public speculation that political expediency had trumped his legal independence. The issue was aggravated by the resignation of the then Deputy Legal Adviser of the Foreign Office, Elizabeth Wilmshurst, on 20 March 2003, citing her disagreement with Lord Goldsmith's view on the legality of the use of force in Iraq.

I start by asking whether he would in retrospect accept that the Iraq war was the worst political blunder committed by the UK since the Suez crisis. Lord Goldsmith disagrees with this. He describes Saddam Hussein as "an evil and bad person" for using weapons of mass destruction against other countries and even against his own people. He adds, "It is too early to tell. It was bad for Tony Blair. But there is still at least a reasonable prospect that Iraq will turn into a stable democratic country."

I next broach the topic of Lord Goldsmith's leaked advice and the allegation that he had succumbed to political pressure in sanctioning the use of force in Iraq. To satisfy my curiosity, I ask him how official documents are leaked in the UK despite the existence of Official Secrets legislation. Lord Goldsmith's expression turns weary, "Can you stop it? No. We have an Official Secrets Act but does anyone obey it? No. People say on the one hand that the public has a right to know. But you can't have deliberation if you do not have things kept secret."

On the issue of the alleged discrepancies in his advice, Lord Goldsmith says, "I didn't succumb to political pressure. It was the toughest decision to make. Deciding whether a country goes to war is a heavy responsibility." Lord Goldsmith then adds that his original advice was a "typical lawyer's advice" which was more equivocal and which suggested that the safer option would be to obtain authorisation for the use of force through a further United Nations Security Council resolution. The reason he says that the second advice contained more apparent certainty about the legality of the use of force was that he was required by government officials to provide them with "a yes or no answer", which had in turn required him to take a definitive view on the legality of the use of force without a further resolution. This was set against the background of the UK's (and United States ("US")) inability to obtain a further United Nations Security Council resolution authorising the use of force in Iraq due to a veto exercised by France.

At this juncture, I am signalled by officials from the Law Society that my time is up as Lord Goldsmith is due to deliver his lecture. I hurry a few more questions about Lord Goldsmith's well-established and admirable track record on human rights issues and his stance on the closure of the Guantanamo Bay detention centres, which Lord Goldsmith entertains, but the interview comes quickly to an end.

As I walk out, I recall an article in the British newspaper, The Independent, which quoted an English High Court judge reacting to these controversies as follows: "That's what happens to good, sound barristers who get caught up in politics they aren't trained or designed for and just don't understand." Lord Goldsmith, the lawyer-politician, will no doubt disagree.

Prakash Pillai
Rajah & Tann LLP
Email: prakash.pillai@rajahtann.com