Reviews
| Published date | 01 July 1965 |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb01092.x |
| Date | 01 July 1965 |
REVIEWS
THE
LAW
OFFICERS
OF
THE
CROWN.
By
J.
LL.
J.
EDWARDS,
LL.D.
[London: Sweet
&
Maxwell Ltd.
1964.
xviii and
401
and
(bibliography and index)
23
pp.
f3
10s.
net.]
AT
first
sight
it
seems strange that the legal profession should have had
to
wait
so
long for
a
full-length study of the Law Officers of the Crown. After
reading Professor Edwards’s interesting book one is less surprised, because
the history of the Law Oacers and their work is a complicated and intricate
business, and their duties touch the administration of English law
at
so
many and such diverse points that the writing of
a
balanced and coherent
account of these offices presents an aspiring author with
a
formidable task.
On the whole it may be said that Professor Edwards has succeeded with
this.
He
has certainly put together
a
great deal of very interesting informa-
tion, much of which will be unfamiliar to most lawyers, and still more
of
which is of constitutional and even everyday practical importance, though
not always easy
to
track down in the textbooks. His volume also has the
advantage
of
a
great deal of patient scholarship, which in such
a
wide and
comparatively untracked area contains surprisingly few errors. The main
problem in
a
work of this kind is to present
a
balanced and integrated
account, and in this the author has not been completely successful.
The most obvious weaknesses are
a
tendency to over-elaboration in the
treatment
of
some of the historical episodes (an example is the long-sustained
controversy over the termination of the right to private practice);
a
good
deal of repetition; an occasional confused presentation, particularly of the
historical detail-the chapter entitled
“
Hybrid Character of the Law Officers
”
is really in
a
substantial measure
a
continuation of the previous chapter
on
emoluments and the important point about hybrid character does not emerge
effectively until later; and sometimes
a
failure to subordinate the detail
to
the elements of basic significance.
The Law Officers are working members of the legal profession
:
they
are
Members of Parliament with special and exceptional duties
to
that institution-
in recent times of course more particularly to the Commons House; and they
are
Ministers in the Government team, owing
a
duty
of
loyalty to their
colleagues.
It
does not require much analysis to become aware that there are
here
serious
possibilities of conflicts of duty and conflicts of interest, and the
careful and detailed survey which Professor Edwards provides, in historical
perspective, of the work of the Law Officers brings this home with abundant
evidence.
It
is here
I
think that we find the main value of his book. Fortunately
he is sensitive to the political and institutional aspects of his subject-this is
not always the case with the professional legal analyst-and is prepared
to
express
a
personal view on controversial points; which adds to the liveliness of
his text. Thus, on the much-debated question of the alleged claims of the Law
Officers to judicial preferment, the history of which
is
long and interesting, he
reachcs the common-sense conclusion that whatever may have happened in the
past, they should now only have
“
the same consideration to preferment
”
as
their legal colleagues
at
the bar, with, of course, the practical advantage of
“
the opportunity presented by tenure of the
Law
Officerships.”
As
I
have already said the Law Officers are concerned with the workings
of the legal and political institutions of the country
at
very many points.
Each of these has its historical
as
well
as
its current aspects,
so
that the
most cursory analysis of this book, chapter by chapter, would overstep the
permissible bounds
of
space.
I
will content myself with an indication
of
some of the chapters which
I
found of particular interest.
489
490
THE
MODERN
LAW
REVIEW
VOL.
28
Older lawyers who have not kept in touch with recent historical research
will be fascinated by the work of Professor G.
0.
Sayles described in
Chapter
2:
his researches into the early history of the King’s Bench throw
a
good deal of light on the origins of the King’s Attorney, and fill in the
gaps in Holdsworth. Again the detailed account of the Attorney’s relation-
ship with the House of Lords, and the extreme jealousy of him in the
Commons which for long refused to admit him to membership, interestingly
sketched by Professor Keeton in his life of Lord Robson, illustrates both
the resistance of the English to political change, and their astonishing capacity
to accept
a
generation
or
two later the sanie innovations as
a
matter of
course. Even now, however, the Attorney’s position in relation to the House
of Lords is far from clear, as appears from the speech of Lord Kilmuir L.C.
as
recently as
1957,
a
discussion of the position which is not sufficiently well
known. The same point emerges again in the long period of havering over
the establishment of the Director of Public Prosecutions whose office is
the
subject-matter of the final chapters of this book-how did we do without
this official
so
long is the point which comes to one’s mind.
To
how many
of
us
is the King’s Advocate-General who did not disappear till
1872
more
than
a
name?
Or
even a name? Yet his status was for
a
time as high as
that of the Attorney-General, over whom in certain cases he seems to have
had precedence (p.
132),
so
that he can properly be regarded
as
having been
a
third Law Officer.
One of the most important and interesting questions in relation to the
Law Officers, in which of course their hybrid character is very much involved,
is
that of their independence of the Executive in connection with criminal
prosecutions. Professor Edwards throws
a
good deal of new light on the
famous
Campbell
case of
1924
and absolves Sir Patrick Hastings of any real
guilt in connection with it
:
the trouble was to some extent due to his lack
of political experience but more to Ramsay MacDonald’s fumbling. In-
cidentally, it is quite clear that in the past the Law Officers were far from
unanimous on the subject of their independence. The dispute goes back
at
least to
1793
when INrd Eldon was Attorney. He was a strong
pro-
tagonist of the independence view, which on the whole has received the
adherence of conservative lawyers. On the other side may be mentioned
such eminent Law Officers as Lord Denman and Lord Herschell.
It
is
interesting, and not altogether surprising, that Lord Birkenhead, one of
the bitterest critics of Sir Patrick Hastings in
192%
had
at
the behest of the
Executive launched political prosecutions without hesitation when Attorney-
General during the
191k-18
War. This question of independence comes into
the issue of the Attorney’s fiat, the entry of the
nolle prosequi,
and into
other aspects of the work of the Law Officers which are,
as
one would
expect, all e5ectively dealt with by Professor Edwards.
A point which does not perhaps come out sufficiently is the tremendous
strain under which the Law Officers work, especially in times of constitu-
tional crisis: only exceptionally tough men can stand up to it for long.
Professor Keeton mentions that Robson killed himself on the
job;
Sir Patrick
Hastings had
a
severe breakdown after
1924;
and Sir James Melville,
Solicitor in
1929,
with whom
I
had the interesting ‘experience of working
for
a
time, collapsed under
the
strain
a
good
deal more rapidly than did
Lord Robson.
Some
of
Professor Edwards’ historical deductions seem to me to be open
to challenge but these
are
matters of opinion on which there is not room
to enlarge. Occasionally, however, he seems to get confused over historical
facts: thus at
p.
326,
he states that Sir Frederick Pollock was “later Lord
Hanworth M.R.”-it was of course Sir Ernest Pollock, Aret Solicitor-
and
then Attorney-General in the early
1920s
who became Lord Hanworth:
he was Sir Frederick’s grandson, and very proud of the fact.
c.
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