Richard Worth: Cullen appointment degrades office of Attorney-General

Richard Worth

The decision of Helen Clark to appoint the Deputy Prime Minister, Michael Cullen, as Attorney-General breaks longstanding convention and tradition, not only in New Zealand but in Western constitutional democracies.

Dr Cullen has no legal qualifications or experience. He is an economic historian.

Only once in the history of this country has an Attorney-General been appointed without legal training. That was in the Forbes coalition ministry in which George Forbes held the office from January 1933 to December 1935.

The appointment provoked an uproar at the time both inside and outside the legal profession. It occurred when Downie Stewart resigned from the coalition cabinet and it was announced that the position of Attorney-General would be held temporarily by the Prime Minister.

The New Zealand Law Society passed a resolution deprecating the appointment. There were good reasons for that concern which directly related to the role of the Attorney-General. Doubtless Michael Cullen has political skills, but the role of Attorney-General puts no premium on those abilities.

The Attorney-General is guardian of the public interest, who exercises an independent function not shared by other Government ministers and is the formal constitutional link between the Judiciary and the Government.

In 1312 the first formal appointment as the King's Attorney was made to the King's Bench. So the office can be traced back to medieval times when the King, not able to appear in his own courts in person to argue his cases, employed the services of an attorney who had the responsibility of maintaining the sovereign's interests before the courts.

The office of Attorney-General became a fixed institution in 1461.

An air of unreality surrounds Dr Cullen's appointment. That is well demonstrated by the fact that the Attorney-General takes precedence in the courts before all other members of the legal profession. Next in line is the Solicitor-General, then the Queens Counsel, ranked in the order of their call to the Inner Bar, then barristers ranked in the order of their call to the bar.

When one looks at what the role of the Attorney-General is, it becomes quite clear that Dr Cullen, who will take office when Margaret Wilson becomes the Speaker, will be little more than a cipher tasked to do the bidding of others. That faceless group of retainers may well have clear political agendas which are the very antithesis of the responsibilities of the office.

The Attorney-General carries out a range of tasks which include: overall responsibility for the prosecution of crime; representation of the Government in civil proceedings as plaintiff and defendant; provision of legal advice to the Government in Parliament; recommending the appointment of judges to the courts; maintenance of the relationship between the Judiciary and the Government; and protection of the public interest in a range of ways including responsibilities for charities and proceedings by way of relator.

The appointee has no skills in any of these areas. There will be particular problems in maintaining the relationship between the Judiciary and the Government.

It is fair to say that that relationship is at a low ebb for a number of reasons. Perhaps the tensions started with the Ngati Apa decision by the Court of Appeal and the Government's response with the foreshore and seabed legislation.

In what has been a continuation of a public spat with the judges, the outgoing Attorney-General has described the Chief Justice as the "shop steward" of the judges.

Dr Cullen has entered the arena with his comments that there is an increasing tendency to challenge the exercise of parliamentary sovereignty from within the heart of the Judiciary.

None of this augurs well for one of the most critical and important constitutional relationships.

If New Zealand is to pursue a lonely course with the appointment of an Attorney-General without legal skills, then the tasks associated with the office will be compromised.

* Richard Worth is National Party spokesman on justice.