A cross-party report has found that political attacks on judges by ministers were not “constitutionally… proper” and may appear to compromise the independence of the judiciary.
Ministers have a duty of care to ensure judicial independence. However, the All Party Parliamentary Group on Democracy and the Constitution concluded the politicization and enforcing of key constitutional offices meant that this duty was rarely enforced. This failure is centered on the Attorney General, and her recent actions highlight the politicization of her office.
I was counsel to the All Party Parliamentary Group’s inquiry. I write this, with the permission of the Chair (Geraint Davies MP), to help explain some of the report’s findings (all expressions of opinion are my own).
The functioning democracy depends on the office and support staff of the Attorney General. The Attorney General serves as the chief legal advisor to executive. The placement of a senior lawyer in the heart of government is symbolic and practical. This is both an acknowledgement that government is bound by law (as written by the democratically elected parliament), and an assurance that government will govern accordingly. This includes ensuring that ministers comply with their responsibility to safeguard judicial independence.
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Although the position of Attorney General is a politically appointed one, it is more of a lawyer than a politician. The Attorney General must advise the government on the law, even when that advice does not elide with the government’s political priorities. This role has been traditionally held by one the most respected lawyers of the day. They remain rooted in ethics and the standards of the legal profession while maintaining their independence and authority in matters of law.
The current Attorney general appears to have diverged from this. He made a series public interventions that are both highly political and legally questionable.
She has been a busy woman in the last month advised that the government can unilaterally alter the Northern Ireland Protocol because the EU has “created a trade barrier in the Irish sea”. This was in direct contradiction to the prevailing viewThe Protocol was intended to create a trade barrier in Ireland’s seas. Even more important, the publication of the advice violated a long-standing constitutional convention which requires that the Attorney General not disclose her legal opinions (unless required by parliament). Ms. Braverman relied on that convention to hide the analysis behind her conclusions. When asked if she had approved the publication of her advice previously, she replied “Yes.”n astonishing personal attackOn her opposite number.
Ms Braverman was still there a week later waded into the culture war issue of trans rights, publicly telling schools that they should not treat trans students as the gender with which they identify because “under-18s cannot get a gender recognition certificate”. Legally, this is completely wrong. Trans-people are protected regardless of whether they have a Gender Recognition Certificate. Moreover, the Attorney general was engaging in a political intervention that is outside her constitutional mandate.
These are the latest in an extensive line of questionable statements. They include publicly clearing Dominic Cummings (then the Prime Minister’s advisor) of breaking lockdown rules in April 2020 before Durham police had completed its investigation, and claiming the government was entitled to breach the Brexit Treaty in the Internal Market BillInternational obligations do not become binding until they are enacted in statute. Treaties, however, are binding when ratified in international law. The APPG described the latter as “a very basic legal error.”
Ms Braverman has been at the forefront of the government’s political pressure on judges. The report mentions a speech in the context of which she attacked several judgments that were against the government. Worse, Ms Braverman praised a change in approach in recent Supreme Court decisions. Her comments give the impression that the executive believes that the court has responded to pressure by adopting a pro-government approach.
However, Ms Braverman shouldn’t be judged too harshly. According to the All Party Parliamentary Group, the underlying problem is with our constitution, and not one person (indeed, Ms Braverman was not the only minister to have acted inappropriately).
The Prime Minister can appoint the Attorney General. This may not matter if the Attorney General is a senior legal figure. Ms Braverman, and others before her, was a senior legal figure in their own right. However, the Attorney General is largely dependent on the Prime Minster for career advancement. They are incentivised not to tell them what you want to hear. A Prime Minister who doesn’t want to lose in court may be well advised to appoint the most independent minded Attorney General they can find. The government can ignore or attack judges against it and avoid adverse decisions.
We cannot rely on ministers simply “doing the right thing” to secure key guarantees of democracy. We need clear legal rules. The APPG proposes a simple fix: statutory guidance for the appointment (including qualification and conduct) of the Attorney General. This will ensure that the Attorney general is accountable to objective criteria and not the whims of the person in command. While the Attorney General may not be the most prominent position in government, they are essential to ensuring we are governed in accordance with the law. Without this guarantee, democracy is void of its essence.
