Over the last three years, Conservative ministers have embraced the line that ‘lefty lawyers’ frustrate government policy, with Suella Braverman arguing that they have undermined the judicial system. In fact, identifying the true threat to the independence of the legal system will require some humble introspection, and a recognition that recent Attorney Generals have been too political.
The fundamental role of the UK Law Officers, the Attorney General and the Solicitor General, is to act as legal advisors to the government. They are at once politicians and independent guardians of the law. However, Braverman’s overtly political approach to her time as Attorney General has demonstrated the need for reform that will safeguard the essential legal commitment of the Law Officers.
There has for some time been a consensus amongst leading lawyers and academics that the Attorney General must strike a “balance” between the “legal and political aspects” of their work.
Maintaining the political element of this balance is important. A politically attuned Law Officer is better prepared to grapple with the issues facing his ministerial colleagues. Further, an apolitical, independent lawyer might struggle to maintain as high a level of authority amongst the Cabinet as is currently the case. The importance of the Attorney General’s presence among the Cabinet is best highlighted by the disaster of 1956, when lack of legal consultation prior to military action in Suez led to the resignation of the then Prime Minister, Anthony Eden.
However, recent Attorney Generals have increasingly embraced the political, to the expense of the legal. Geoffrey Cox, Attorney General between 2018 and 2020, positioned himself at the centre of party-politics, giving a speech introducing the Prime Minister at the Conservative Party Conference in 2019, conducting Brexit negotiations himself and defending the then Prime Minister Boris Johnson with a furious Commons performance during debates on the prorogation of parliament. Cox believed that he had a “perfect right in cabinet to comment on all matters of policy and to participate in the fashioning of policy of the government.” That this change in tack was dramatic is demonstrated by a warning from Dominic Grieve, Attorney General of just four years earlier, that it would be “a very dangerous thing” if the Attorney General was “pontificating in cabinet.”
Despite this, Cox did offer politically inconvenient legal advice to the Government, indicating that he maintained some regard for the legal commitment of his office. His advice on the legal implications of the Northern Irish ‘backstop’ contributed to Theresa May’s failure to win the Commons’ approval for her deal, with Cox’s legal advice cited by opposing MPs. Indeed, this advice was perceived as intransigence by the government, as revealed by a No 10 briefing that Cox was “not a team player.” This briefing itself indicates that the perceived role of the Attorney General had developed into something more party political.
The slide towards the political was accelerated by Braverman, who regarded the “political thread that runs through this role” as “vitally important.” This change was demonstrated by her desire to employ a special adviser during her tenure as Attorney General; an over-politicisation of the office.
Braverman’s unapologetic commitment to politician first, lawyer second, was most evident in her rhetoric. When the journalist Robert Peston suggested that the Government’s legislation threatened to break the law, Braverman responded that “this is your Remainiac make-believe.” Braverman was doing little to distinguish her comments from the stock party-political line of any Cabinet minister. Indeed, her public defence of Dominic Cummings’ alleged breach of COVID-19 lockdown guidelines undermined the independence of her office, whilst her partisan defence of the Internal Market Bill provoked accusations from lawyers that she was disregarding the rule of law. What Robert Buckland had described as the “grave danger” of Law Officers prepared to “adapt their advice to reflect the political priorities of their ministerial colleagues” appeared to have become the reality.
Sadly, it is likely that Braverman’s more political approach is here to stay. Past Attorney Generals have very rarely been “politically ambitious.” However, future Attorney General appointments are more likely than before to be young and ambitious political wannabes. The number of barristers in the Commons has fallen, from around 15% of MPs between 1951 and 1974 to 5% in recent years. Indeed, the proportion of MPs with any legal at all background has fallen steadily. Consequently, the pool of MPs to choose from for the position of Attorney General is getting smaller. Moreover, the prospect of a reformed House of Lords is likely to prevent an experienced barrister in that House becoming Attorney General, as Lord Goldsmith did in 2001. If Attorney Generals continue to be chosen from amongst MPs, there will be a lack of experienced lawyers among them, meaning the position will go to ambitious politicians instead.
However, this is not unavoidable. Since the 1997 Law Officers Act, the role of the Solicitor General and Attorney General have become practically indistinguishable, but this need not be the case. One of them ought to be codified as an apolitical legal advisor, distinguishing the role of the Solicitor General from the Attorney General. The former should be an apolitical legal expert, while the latter a political official who procures legal advice.
The recent appointment of Victoria Prentis, who may block Home Office plans for deportations to Rwanda on legal grounds, hints at a return to the conventional approach to the office of Attorney General. However, the promise of reduced controversy in the immediate future should not deter pre-emptive reform.
In 2007, controversy regarding Lord Goldsmith’s alleged doubts about the legality of the Iraq War, which did not appear in his published advice, prompted the Constitutional Affairs Committee to recommend that the Attorney General should “not be a party-political appointment, and should not, as a matter of course, attend Cabinet.” These calls for reform fell on deaf ears. Over a decade later, Braverman’s tenure has provided a reminder of the need to reform, and an opportunity to rectify our mistakes.
Henry Weston is undergoing work experience at Bright Blue. Views expressed in this article are those of the author, and not necessarily those of Bright Blue. [Image: NoName_13]
