Silk but no silken tongue
Sometimes the top legal officers need to give the government advice it doesn’t want to hear
This article is taken from the November issue of The Critic. To get the full magazine why not subscribe? Right now we’re offering three issue for just £5.
Looking up a reference in Hansard on 25 September, I realised I’d forgotten to watch the attorney general answering MPs’ questions a day earlier. What had I missed?
In response to questions about the government’s Internal Market Bill, Suella Braverman QC MP had stuck to her assertion that, as a matter of domestic law, it was proper for parliament to pass legislation that might breach international law or treaty obligations. But, she was asked by Joanna Cherry QC MP, hadn’t the Supreme Court said in the Gina Miller case that treaties were binding on the United Kingdom in international law?
It was an obvious question and the attorney general should have had a ready answer. Instead, she tried to score a political point at Cherry’s expense. It backfired spectacularly because Braverman seemed to think the Scottish National Party front-bencher was referring to Miller 2, the prorogation case decided in 2019. But Cherry had clearly been quoting from Miller 1, the case about triggering article 50 that was decided in 2017.
Governments have found it increasingly difficult to find lawyers suitable to serve as one of the law officers
This was the sort of knockabout that might have made an amusing sketch on a quieter day. I wrote a quick blog headed Mixed Millers from the attorney general, adding, as a sub-head, “Moral: know your cases before taking on another QC.” I then tweeted those headlines with a composite picture of the two MPs.
To my astonishment, my tweet was retweeted 800 times and my blogpost attracted 20,000 views — by far the largest response I have ever had. Many of those who responded contrasted Cherry, who became a QC in 2009 after some 20 years’ practice as an advocate in Scotland, with Braverman, who practised as a barrister for 10 years and whose promotion to Queen’s Counsel in February followed automatically when she became attorney general. Unlike Cherry, my followers insisted, Braverman was not a “real QC”.
That’s a matter of some sensitivity among lawyers, who rightly regard those postnominals as a badge of excellence — awarded to a select few after some two decades of effective advocacy and payment of a hefty fee each time you apply. The profession is more forgiving to honorary QCs, on the basis that nobody would mistake us for practitioners.
Until the mid-1990s, there was an understanding that “silk” was freely available to any barrister in the House of Commons who asked for it. David Mellor, who served in John Major’s cabinet, became a QC in 1987 — having clocked up only seven years’ practice at the bar. Viscount Hailsham was made a QC in 1990; as Douglas Hogg, he had not been in practice for much longer before his election. When I questioned Mellor’s appointment at the time, I was told — implausibly — that speaking in the Commons was equivalent to advocacy at the bar.
Over the past 20 years, successive governments have found it increasingly difficult to find lawyers in parliament who are suitable to serve as one of the UK government’s three law officers — attorney general, solicitor general and advocate general for Scotland. Labour used to send QCs to the House of Lords and appoint them when an attorney general was needed: thus Lord Williams of Mostyn (1999-2001), Lord Goldsmith (2001-2007) and Baroness Scotland of Asthal (2007-2010). Another option was to pick a junior lawyer in the Commons and make that person a QC on appointment: for example, Harriet Harman MP (solicitor general 2001-2005); Mike O’Brien (solicitor general 2005-2007). Strikingly, O’Brien does not use his rank and practises as a junior barrister.
The justification for promoting law officers on appointment is presumably that Her Majesty’s government should be represented in court by one of her “counsel learned in the law”. But if a law officer is competent enough to represent the government in person, advocacy from the “second row” will be equally effective. If not, a silk gown will not grant its wearer a silken tongue.
When David Cameron sacked Dominic Grieve and his deputy in 2014, the PM could find no QCs in the Commons to replace them. Cameron chose Jeremy Wright as attorney general and Robert Buckland as solicitor general — both of whom were appointed QC and then grew into their roles. Wright was replaced in 2018 by Geoffrey Cox, the first attorney general for many years to have been a silk when he won his seat. Cox lasted less than two years before being sacked by Boris Johnson.
There are no longer enough senior lawyers in the Commons to serve as law officers. That’s because of family-friendly hours: a barrister can no longer work a full day in court followed by a full evening in parliament.
But there is another reason why “real QCs” are no longer made law officers. Only senior lawyers, with established legal careers to fall back on, have the confidence to give their colleagues advice they would rather not hear. Frankness of that kind is no longer welcome, as Grieve, Cox and Lord Keen of Elie QC, found to their cost.
Keen, a QC since 1993 and a former leader of the Scottish bar, resigned as advocate general for Scotland on 16 September. The government struggled to find someone willing to replace him as a law officer. Little wonder, when Keen had told the prime minister there was no “respectable argument” for the position his successor would have to support.
If ministers do not receive good legal advice, they take bad decisions — and we are all the poorer.
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