Jury’s out for the new attorney general
Is Suella Braverman up to the job?
Should we be pleased that the new attorney general wants parliament to “retrieve powers ceded to … the courts”? Should we be worried that Suella Braverman MP was not a Queen’s Counsel when she became the government’s senior legal adviser last week?
The answer to these questions is “not yet”: on both, the jury is still out. In the meantime, though, let’s consider the evidence.
Last month, Braverman wrote a piece for Conservative Home in which she accused the judges of encroaching on decisions that were best left to parliament. The only examples she gave were Gina Miller’s twin challenges on triggering Article 50 and prorogation — which is curious because in both cases the UK Supreme Court took powers away from the government and handed them back to parliament.
Still, the piece must have done her no harm when Boris Johnson was looking around for someone to replace Geoffrey Cox QC. Writing in the Telegraph, Simon Heffer saw Braverman’s appointment as marking the launch of hostilities between the government and the judiciary.
The casus belli, we may imagine, is the Terrorist Offenders (Restriction of Early Release) Bill, approved by the House of Commons last week and due to be debated in the Lords next Monday. Once the bill becomes law, prisoners sentenced for terrorist-related offences will not be considered for release until they have served two-thirds of the sentence imposed at trial. Even then, they will not be let out unless they can persuade the Parole Board that they will not endanger the public. Instead of being freed on licence halfway through a sentence, some offenders will serve the full term imposed by the court.
Can that reform apply to prisoners already serving their sentences? The lord chancellor, Robert Buckland, insists that it does not amount to unlawful retrospective criminal legislation: “Release arrangements are part of the administration of a sentence,” he told MPs, “and the overall penalty remains unchanged”.
Buckland has taken legal advice — presumably from Cox, among others — and he is confident that the new legislation is not in breach of the European Convention on Human Rights, which prevents offenders receiving a heavier penalty than the one applicable at the time of the offence. Even if he is wrong on that, the legislation cannot be overturned by the Supreme Court (and it’s very unlikely to be reinterpreted, or “read down”, by the justices). So the most our courts could do would be to declare Buckland’s sentencing legislation incompatible with human rights and wait to see what the government does next. It would take years for a further challenge to reach the European Court of Human Rights.
Even a declaration by the Supreme Court that anti-terrorist legislation is incompatible with human rights would be enough to revive the canard that judges are “enemies of the people”. But I like to think that the judges are shrewd enough to avoid that particular elephant trap.
What Buckland does have in store for them, according to the Ministry of Justice, is a Constitution, Democracy and Rights Commission. We know very little about what this might do but we do know that Cox’s request to chair it has been rebuffed: the government wants it chaired by an academic rather than a politician.
Judges are concerned about threats to judicial review and human rights. But any reforms will be put forward by Buckland rather than Braverman: the attorney’s job is not to take policy decisions herself but to advise on their lawfulness.
How good will she be at that? Braverman, 39, has a strong academic background — Cambridge, the Sorbonne and the New York Bar — and she was in practice as a barrister for some 10 years until her election to parliament in 2015. That did not give her enough experience to seek appointment as Queen’s Counsel — but she will not be the first attorney general to receive the rank within a few days of her appointment.
As a member of the attorney general’s panel, she was used to advising government departments on issues of public law. The question now is whether she has sufficient independence of mind to stand up to senior ministerial colleagues.
The attorney’s job is not to take policy decisions herself but to advise on their lawfulness.
That self-confidence comes with experience. The day before he was sacked, Cox told me, at an Institute for Government briefing, that lawyers were no longer being attracted into politics in the way they once were. There were fewer senior lawyers in the House of Commons, he confirmed; more should be encouraged to stand for parliament. “It has been made much more difficult for a senior member of the bar to go into politics,” he added.
Cox did not discuss the reasons; but we can see that working conditions that were convenient for practising barristers have been replaced by child-friendly hours. The very notion that MPs should have a day job now seems to be anathema.
For how much longer, then, can we expect to find experienced law officers in the House of Commons? What can be done if prime ministers cannot find anyone with enough experience? Will future attorneys general be civil servants rather than MPs? All good questions for Buckland’s constitution commission to consider.
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