L’Affaire Cummings is over, its lasting significance, if any, yet to be determined. But there is one aspect of it, largely ignored by the media, worth exploring. It relates not to the PM or his advisor but to the Government’s two main legal advisors: the Attorney-General, Suella Braverman, and the Lord Chancellor/Secretary of State for Justice, Robert Buckland.
First, a brief explanation. The Lord Chancellor is responsible for the justice system: the courts, prisons and probation services, some of the structures through which justice is delivered. But he is no longer a player, not directly anyway, ever since his role as head of the judiciary was removed. The A-G, who reports to him, has a subtly different role: she too is responsible for parts of the criminal justice system – the CPS and the SFO, for instance. But she is also the government’s chief legal advisor. Her role is to ensure that the government acts within the law, a critical obligation. The A-G also has the power to intervene directly in legal cases – for instance, by bringing proceedings for contempt of court (as with the newspapers over Christopher Jeffries’ treatment in the Yeates murder case) or referring unduly lenient sentences to the courts. In some cases e.g. national security the A-G’s permission is needed before a prosecution can be started. Otherwise, all prosecution decisions are made by the CPS. The A-G’s role is to protect the CPS’s integrity and independence not run it day-to-day.
It a curious and sensitive mixture of the political and legal. “To be a law officer is to be in hell” a previous holder described it. Why? Well, the A-G has to do the best for their client, the government (not, nota bene, its individual members or those working for it), has to provide legal advice to ensure the government complies with the law but has an overriding duty to the courts – like any lawyer. If there is a conflict between what the client wants and the law, the law wins. It can be a difficult line to tread. The reason why the A-G is not in Cabinet is to avoid mixing politics and legal advice. Not all have managed this successfully: Peter Goldsmith did not exactly enhance his reputation with his advice over the legality of the 2003 Iraq war. So government legal officers really need to be careful about opining on political controversies which might develop into legal cases. Like Caesar’s wife, appearance as well as conduct need to be beyond reproach.
Back to Mr. C. Once the PM declared his support issuing a statement saying that Mr C believed “he had behaved reasonably and legally”, a large number of Tory MPs rushed to social media to add their piece. Most might as well not have bothered. There were two broad templates doing the rounds: one for backbenchers expressing their disapproval, why they would not have behaved in the same way and why naughty Mr C should go. This was aimed at “Outraged of Bootle” to show them that the MP was a good egg even if, alas, they could and would do absolutely nothing, beyond some well-crafted wailing. The other was for Ministers: this was rather more supportive of Mr C, commenting on his behaviour as a good parent, his reasonableness and the legality of what he did. Not all bothered: the Home Secretary, responsible for the police who enforce the regulations Mr C was accused of breaching and who were busy drafting their own statement as the PM was writing his, wisely chose to remain silent.
The A-G did not. She tweeted that the Downing Street statement “clarifies the situation”. Whether she realised it or not at the time, she was endorsing the statement issued by No 10 about Mr C behaving “legally”. Most unwise. It is not the job of the A-G to comment on the legality of an individual’s actions, particularly not when this is the subject of controversy and those actions might yet be subject to formal investigation and possible legal action. She could not have known this would not happen, unlikely as this might be. Making such a statement also potentially created another problem: if the CPS had got involved, might their decision have been influenced by the publicly expressed view of their boss? One would hope not. But it is precisely to avoid even the possibility of this that care needs to be taken by those with overall responsibility when commenting on potential legal matters. A person in charge need not give a direct or express order in order to get the outcome they desire or that others think they desire. (A recent example of just this can be found in the IOPC report on Ms Arcuri. (“While there was no evidence that Mr Johnson influenced the payment of sponsorship monies or participation in trade missions, there was evidence to suggest that those officers making decisions about sponsorship monies and attendance on trade missions thought that there was a close relationship between Mr Johnson and Ms Arcuri, and this influenced their decision-making.”)
Let’s give Suella the benefit of the doubt. Perhaps she rushed out a Tweet without thinking. But there seems to be more. According to press reports she advised the Cabinet that “no laws have been broken” by Mr C. How could she possibly know at that stage? Indeed, what business was it of hers anyway? As the government’s own website says, the A-G does not give advice to individuals or businesses. Nor does it give advice about whether they have or have not broken the law to Cabinet. A Spad is not the A-G’s client.
It goes on. When challenged on what she had said in the Commons (and in correspondence with the Shadow A-G) she kept on digging: there “was no question whatsoever of my having provided any public legal view on the matter”. A public legal view was pretty much what she did give by endorsing No 10’s statement. To claim otherwise is simply incorrect. She should never have opined on the issue at all. She should not have commented on the legality or otherwise of Mr C’s actions. And when challenged she should have admitted her mistake and apologised.
If she could not work it out for herself, all she had to do was copy her boss, Robert Buckland, who put it perfectly: “owing to the operational independence of the police and my constitutional duty as Lord Chancellor to uphold the rule of law, it would not be appropriate for me to give a view on the merits of an individual case.” A lawyer-politician who understands his role. Hooray!
This is not difficult stuff. But it is important. An A-G who appears not to understand her role, the distinction between her as politician and her as chief lawyer, who does not understand the vital importance of discharging her constitutional responsibilities free from political considerations or influence, from even the appearance of them, who doesn’t understand the value of precision in drafting and speaking, the importance of not appearing to have prejudged matters or being biased, the importance of admitting when a mistake has been made – even in good faith – and learning from it is a problem. A big one.
There are many legal challenges ahead for the government, particularly in relation to international law and treaties (the NI Protocol for one). Getting the best possible legal advice matters. Having someone of integrity and independence – and utterly scrupulous about maintaining these – in charge of the government’s legal advice matters. Having someone willing to speak truth, even unwelcome ones, to power matters. As Philips Sands QC put it: “The absolute integrity of an attorney general is the prerequisite for a functioning democracy.” Strong words. But we need only look across the Atlantic at the behaviour of another Attorney-General to see how damaging the lack of these qualities can be.
One lesson learnt from years of investigation is this: when someone did something really bad and their past was looked into, there was always some small clue, some previous apparently minor failing or breach, often disregarded as unimportant rather than seen as an indication of character. The difference between those who misbehaved seriously and those who didn’t often came down to whether people admitted to – and learnt from – their early or small mistakes. Will our Attorney-General? We must hope so.