Law and democracy: Attorney-General role scrutinised once again by parliamentary committee
In the run-up to the latest round of votes on the UK’s Brexit deal, the Attorney-General Geoffrey Cox QC, MP, was once again pivotal – his advice on the implications of legal assurances from the EU regarding the backstop were central to the debate.
This follows the controversy that arose in the days leading up to the first parliamentary vote on the UK Government’s ‘Brexit’ Bill in December, renewing the long-running debate over the Attorney-General role.
On that occasion, the Cabinet had received confidential legal advice on the withdrawal proposals from the Attorney-General, in his capacity as its legal adviser. Members of Parliament argued they had a right to see the advice in order to understand the legal risks and consequences of the proposals.
‘‘Legal decisions in prosecutions and the provision of legal advice should rest with someone who is appointed as a career lawyer, and who is not a politician or a member of the government
House of Commons Constitutional Affairs Committee report, 2007
The government initially refused to disclose the advice. Cox defended the government’s position, offering Parliament what was called a ‘legal commentary’, which Cox referred to as ‘an accurate examination of the…salient issues’.
MPs felt Cox was still hiding something, leading to a parliamentary vote in which the government was held in contempt of Parliament and forced into publishing the advice in full.
Though there has not been overt criticism of Cox himself, he is significantly more high-profile than predecessors (he gave a warm-up speech to Theresa May’s Conservative party conference address in September 2018) and has put himself and the role of the Attorney-General very much in the spotlight.
That role is two-fold: he or she is chief legal adviser to the government as well as ‘attending’ Cabinet. Formally, the Attorney-General is not a member of Cabinet but in practice the difference between attendance and membership could appear semantic. He or she then carries out a number of ministerial functions, including overseeing the Crown Prosecution Service and the Serious Fraud Office, and sometimes takes on a quasi-judicial role in deciding whether certain, usually very high-profile, prosecutions should go ahead.
As Parliament returned after the Christmas break, the House of Commons Justice Committee questioned Cox on the dangers inherent in the role, asking whether his ‘ministerial responsibilities have any conflict with [his] legal advice responsibilities’. In response Cox stated that: ‘it would never occur to me to compromise one’s legal judgment along political lines’, to which he added, ‘I would be no lawyer at all if I allowed my private or political view to obtrude my legal judgment.’
The nature of the Attorney-General’s role has come in for much scrutiny over the years. In 2005, then Attorney-General Lord Goldsmith’s advice on the legality of the invasion of Iraq was highly controversial. The government refused to publish the advice, only to be subsequently forced to do so. It was alleged that Lord Goldsmith’s advice had changed, with the implication being that he had been put under political pressure to do this. There were also controversial prosecution decisions. For example, the halting of an investigation by the Serious Fraud Office of British arms company BAE Systems.
The House of Commons Constitutional Affairs Committee carried out a full inquiry into the constitutional role of the Attorney-General in 2007 and its subsequent report set out a series of radical recommendations. ‘The status quo is not an option,’ the report concludes, ‘we agree that de-politicising the prosecution role should be one of the central purposes of reform… Legal decisions in prosecutions and the provision of legal advice should rest with someone who is appointed as a career lawyer, and who is not a politician or a member of the government.’ Despite the report’s findings, no substantive changes were made.
Ten years on, the current Justice Committee seems unlikely to suggest any reform. Bob Neill MP, Chair of the Committee, tells Global Insight that this issue will not be explored further. Neill also says that on a personal level, he has revised his opinion on the role: ‘Over the 12 years since [the 2007 inquiry]… I now see real advantage in having the Attorney attending Cabinet to give legal advice in real time.’
Neill’s position is mirrored by insiders. Stephen Parkinson, Senior Partner at Kingsley Napley and a former Deputy Head of the Attorney-General’s Office, observes that: ‘It is where law and politics come together. That doesn’t mean that the advice is any different; more that you come with a deeper level of understanding – you are not a politician but you understand the political context. They understand what the client, the Government, wants to achieve and help to deliver it in a legally acceptable way.’
‘There is a famous case from the 1920s where an Attorney-General was said to have been “leaned on” and changed his position on the prosecution of a newspaper editor, and that then led to the collapse of the Labour Government,’ adds Parkinson. ‘Every law officer knows about that case and is alive to the dire consequences if they were to succumb to political pressures.’
The UK is not alone in grappling with this issue, notes Alessandra Mourão, Co-Chair of the IBA Professional Ethics Committee and a former public lawyer in Brazil. ‘Under the Brazilian Constitution, the Attorney-General is appointed by and advises the President yet also among his or her duties is to defend the state in court,’ explains Mourão.
A subsequent Brazilian law that extended the functions of the Attorney-General to defending government officials in court has been challenged because it is seen as a potential conflict of interest. ‘The misconduct of a President could land in court and this would lead to the Attorney-General being appointed to defend the interest of the state as well as ending up defending the agent of offences against the state,’ says Mourão. During the impeachment process of former President Dilma Rousseff, the fact that she could be defended by the Attorney-General was severely criticised, but the Supreme Court found that it was possible.