One side-effect of Suella Braverman’s failed attempt to become leader of the Conservative Party is that her tenure as attorney general will almost certainly come to an end once the new prime minister takes office. That may well be good news for her, since her showing could be enough to get her a senior cabinet position. But it is also good news for anyone who cares about the rule of law, given the damage that her tenure has done to her office.
Braverman’s stint as attorney general will doubtless be best remembered for her attempts to give threadbare legal cover to successive attempts by the Johnson government to break the Withdrawal Agreement with the EU—the treaty that it had campaigned for as a “great” and “oven-ready” deal. On the first attempt—Part 5 of the Internal Market Bill, introduced in September 2020—Braverman’s position was to admit the breach of international law but to suggest that there was no issue for the rule of law as a matter of principle, because parliament had power to pass domestic law in breach of treaty commitments.
On the second—the current Northern Ireland Protocol Bill—Braverman has distanced herself from the idea that the government may be breaching international law, arguing instead that the UK is entitled to breach the Withdrawal Agreement, in ways that go well beyond the limited exemptions provided for in Article 16 of the Northern Ireland Protocol, because it is “necessary” to prevent an immediate and grave peril. It is reliably reported that she had to “shop around” to find any lawyer outside government who was prepared to give credence to that argument, which is universally regarded outside government as hopeless: and any impartial expert will be unpersuaded by her published “legal position,” which contains a series of implausible and unevidenced assertions dressed up as “assessments” and deals with the main reasons why the government’s position is hopeless by ignoring them.
In retrospect, Braverman’s willingness to advance implausible legal argument now looks like the reason why she was appointed in early 2020 in place of the equally pro-Brexit, but determinedly independent, Geoffrey Cox QC (whose speech in the debate on the Bill made it clear that he had the “gravest doubts” over the legality of the Bill and drew attention to the complete absence of evidence in Braverman’s published position).
But Braverman’s tenure will be remembered for other things too. In R v Long—where she personally appeared before the Court of Appeal to argue that the sentencing of teenagers convicted of the manslaughter of PC Andrew Harper was unduly lenient—the court broke with its usual politeness towards serving attorneys general by describing her submissions as “striking” and “unusual” (Court of Appeal code for “hopeless”). It was, the court said, “regrettable” that her submissions had not addressed the relevant guidelines. In that same case a “friend” of hers briefed the Sunday Express that if the Court of Appeal upheld the original sentence it would be an example of “wet, liberal judges being soft on criminals.”
Indeed, loose but politically motivated talk has been a general problem during her tenure. In the Barnard Castle affair, Braverman (ignoring her position as the minister with ultimate accountability for criminal prosecutions in England and Wales) leapt to Dominic Cummings’s defence before any police investigation had been completed. In breach of well-established convention that advice from the law officers (the collective term for the attorney general, the solicitor general and the advocate general for Scotland) is not made public, she conspicuously refused to deny that she had authorised the leak of her advice on the Northern Ireland Protocol Bill. In the run-up to the Conservative leadership, she made in the press and on television a number of politically convenient but legally dubious claims about EU law and the effect of the Northern Ireland Protocol. And during her campaign for the Conservative leadership, she managed to undermine the basis on which the government was defending the Rwanda deportation proposals in the courts—and the government’s own claim that those proposals were compliant with the European Convention on Human Rights—by claiming that “the Rwanda plan can work but we’ll have to leave the ECHR to do it."
Against that background, it is hard not to regard with some suspicion Braverman’s emphasis on obtaining “innovative” legal advice from government lawyers (there has even been a new award established to recognise “creative thinking”). When read with her complaints about a “Remain bias” in the civil service, the message that government lawyers are likely to hear is that frank but inconvenient advice will be dismissed as biased.
It looks as if Braverman treated her time as attorney as little more than a step on the ladder to high office
Just as Johnson’s conduct in office has called into question the idea that a prime minister can be trusted to respect the basic conventions surrounding their office, after Braverman we can no longer be confident that the attorney general will ensure that the government is fully and honestly advised on the law, respects the courts and their judgments, and does not do things that are obviously unlawful. Particularly in retrospect, it looks as if she treated her time as attorney as little more than a step on the ladder to high office, rather than as an office of constitutional importance demanding independence of judgment and a willingness, where necessary, to give unwelcome advice to senior ministers.
So what is to be done to repair the damage? I propose three reforms.
First, there is much to be said for appointing one of the two law officers for England and Wales from outside the House of Commons (as the Blair and Brown governments did on several occasions). Although there are some advantages in having a law officer who is an MP known to ministers, time constraints mean it is now almost impossible to combine substantial legal practice with representing your constituents. If you want a law officer with recent experience of arguing cases before the higher courts—a real asset in cases where difficult judgments are being made about what arguments are likely to survive scrutiny—it is now quite hard to find candidates on the green benches.
Another advantage of having one law officer who is a senior lawyer with a solid professional reputation, who has no realistic prospect of a senior post in government, and who is likely to resume private practice at the end of their term of office, is that this would add to the perception of independence and reduce the likelihood of having another MP law officer who put—or was seen to put—their future political career over their constitutional duties. The convention that law officers should be in parliament can for the moment be honoured by putting non-MP law officers in the House of Lords (the Blair/Brown solution): but a better long-run solution would be to give them a statutory right to speak in the House of Commons, equivalent to the right given to the lord advocate in Scotland and the counsel-general for Wales to speak in the Scottish Parliament and Senedd. Since there are two law officers for England and Wales, having one MP and one established practitioner would combine the best of both worlds.
Second, as in Scotland and Wales, the appointment of the law officers should be confirmed by a vote in the House of Commons. That would be a check on appointing political apparatchiks in the expectation that they will give convenient advice, and it would strengthen the law officers’ position once appointed, since dismissing them would require some explanation to the Commons as to why they were being asked to confirm someone else.
Third, where the law officers’ position on issues such as compatibility with international law is critical to the decision by parliament as to whether to adopt a particular measure, and where there is real doubt about the legal position, the law officers should be required to explain their case in full, attaching all relevant evidence and justifying all assumptions made. They should also—as Geoffrey Cox suggested in his speech on the Northern Ireland Protocol Bill—be subject to questioning in the House (or, probably more effectively, in a select committee) on the reasoning behind their view. That does not trespass on the convention that law officers’ advice is not published—a convention that allows them to give honest advice without having to worry about whether it will be used against the government later. Rather, it would allow parliament to see, and with the aid of outside lawyers to assess, a fully formulated and evidenced case of a kind that would be put to a court, as opposed to bare assertions (such as those in the government’s “legal position” on the Protocol Bill) that would not survive a moment’s scrutiny in any court. And the discipline of having to explain and defend a legal position in public would help curb any temptation to give flawed legal advice simply because it suited the government.
Particularly if Braverman does take high office in the next government, it is unlikely that any such reforms will be contemplated (though appointment of a senior and respected lawyer from outside the Commons as attorney or solicitor general might be a good sign). But particularly since they are relatively straightforward, these reforms should be high on the growing list of constitutional measures that will need to be taken by the next government to avoid any repeat of the conduct of the government that is now, deservedly, being consigned to history.
