You can’t ride two horses

It’s time to make the office of attorney general a non-political public appointment


This article is taken from the March 2022 issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering five issue for just £10.

The BBC, perhaps unusually these days, wants to broadcast a story that the government believes would be damaging to national security. According to the Daily Telegraph, which was briefed by a government source, the broadcaster wants to identify a “spy” working overseas. That would involve “a risk to people’s lives”, the source added.

In response, the BBC insists it “would not pursue any story unless it was felt it was overwhelmingly in the public interest to do so and fully in line with the BBC’s editorial standards and values”.

But that is all it can say. By the time the Telegraph story appeared on 21 January, the government had issued High Court proceedings alleging breach of confidence and breaches of the spy’s human rights. At a two-day hearing planned for the beginning of March, a judge will decide whether the current order preventing publication of the story should remain in force until the case can be argued in full.

How, though, did the government know that the BBC was planning to make disclosures that, as alleged in its claim form, would “create a real and immediate risk to the life, safety and private life of” an unnamed individual? Court papers disclose that information about the story was included in a letter from the BBC to the Home Office, dated 6 December 2021 and headed “to whom it may concern”.

This is more than a little curious. Reporters would not have asked the Home Office about overseas intelligence operations. Might this have something to do with the system of self-censorship that used to be known as the D-notice system?

Under the reformed arrangements, the government has published a notice covering the security and intelligence agencies. Before disclosing material that might identify people who work for them, editors are asked to seek advice from the secretary of what’s now called the Defence and Security Media Advisory committee. A retired army brigadier, the secretary is based at the Ministry of Defence. His name is published and so is his email address. He is not part of the Home Office.

Braverman said she was “not aware” of concerns the AG’s role had become politicised

The claim against the BBC was brought by the Crown — which in this context means the government — “in the name of HM attorney general”. For these purposes, Suella Braverman QC MP, the current attorney general, is the government. This is not a case where she is acting independently as guardian of the public interest, as for example when she brings contempt of court proceedings or refers a sentence to the Court of Appeal that she thinks is “unduly lenient”.

At least, that’s how she is meant to handle these referrals. In 2020, Braverman staked her personal reputation on getting higher sentences for two youths convicted of an appalling manslaughter. The judge should not have followed established sentencing guidelines, she argued. The Court of Appeal disagreed. As the judges noted scathingly, hers had been an “unusual submission”.

In a column for The Critic towards the end of 2020, I discussed the difficulties of finding experienced lawyers in parliament who could take quasi-judicial decisions and give ministers disinterested legal advice.

When I first started interviewing the law officers, they worked from “chambers” in the law courts — symbolically distant from Whitehall. When that became impracticable, they were moved between tiny offices in Buckingham Gate, Victoria Street and Dean’s Yard. Now, they have a corner of the Ministry of Justice monolith.

To preserve their independence, attorneys general are not made members of the cabinet — although they now attend all its meetings “by invitation”. That subtle distinction is lost on Braverman. 

“The way I see it is that I am a member of the cabinet and I subscribe to collective responsibility,” she told the Commons justice committee bluntly in January. But how could she accept responsibility for a decision that she had advised ministers was unlawful?

And why is Braverman the first attorney in 750 years to employ a special adviser of her own? “I am involved in some of the big issues the government are grappling with,” Braverman told MPs. “They are inherently political and having an adviser who can bring the political dimension is very helpful.”

An example is Braverman’s responsibility for forthcoming legislation to amend or repeal so-called retained EU law. This led to a reportedly fractious meeting at the end of January with ministers from the UK’s devolved administrations. Braverman told the justice committee she was “not aware” of concerns that the attorney’s role had become politicised during her time in office. She certainly is now.

In my view, we can no longer expect a politician to ride two unruly horses in diverging directions. It is time to make the attorney general a non-political public office, combining it perhaps with the post of procurator general. That’s held by the civil servant who heads what’s now called the Government Legal Profession.

Then Braverman can be as political as she likes.

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