Questions raised over attorney-general’s independence

Questions have been raised over the independence of the British government’s most senior law officer following Suella Braverman’s attack on the judiciary just weeks before she was appointed to the role.

Boris Johnson picked the leading Brexit campaigner to replace Geoffrey Cox as attorney-general in last week’s reshuffle as the prime minister prepares for a sweeping review of the constitutional relationship between the government and the courts.

Writing on the ConservativeHome website last month, Ms Braverman attacked “unaccountable judges” and argued that parliament must “take back control” from the judiciary.

“Today, our courts exercise a form of political power. Questions that fell hitherto exclusively within the prerogative of elected ministers have yielded to judicial activism: foreign policy, conduct of our armed forces abroad, application of international treaties and, of course, the decision to prorogue parliament,” she wrote.

Government officials said the constitutional review will be overseen by the Cabinet Office, headed by Michael Gove, who will work alongside justice secretary Robert Buckland and Ms Braverman. 

But lawyers have expressed concern that Ms Braverman lacks the independence to stand up to the government and deliver any unwelcome legal advice.

Mr Cox, an experienced criminal barrister, delivered a blow last year to the then prime minister Theresa May when he gave his view about the legal risks of the Irish backstop under her Brexit deal.

Philippe Sands, a barrister and professor of law and director for the Centre of International Courts and Tribunals at University College London, said the removal of Mr Cox was notable because it showed that the Mr Johnson was prepared to “remove from office an attorney-general perceived to be too independent.”

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Lord Falconer, lord chancellor in Tony Blair’s government and now a partner at Gibson Dunn, said he was concerned about the views the new attorney-general expressed in her blog post last month. Ms Braverman said she was seeking to correct the “delicate relationship between law and politics” but Lord Falconer argued she was looking to tip the balance in favour of the executive.

“Far from opposing changes which most reasonable lawyers would think were damaging to the constitution she seems to want to reduce the restraint on the executive being held to account by the law,” he said, adding: “To remove the counter weight of the attorney-general against any legal changes is very worrying . . . as is the idea of the prime minister being egged on by the attorney-general in this area.”

Lawyers also suggested she lacks the experience of previous heavyweight attorneys-general, including her immediate predecessor and Dominic Grieve, the previous incumbent.

The 39 year-old, who has a masters in law, was a barrister for 10 years and for half that time worked for the government on various cases before being elected to parliament in 2015. Her first promotion in Westminster was to the role of parliamentary private secretary to Treasury, before she was appointed a junior minister at the Department for Exiting the EU.

Alongside other prominent Brexiters, Ms Braverman resigned from the government in November 2018 in protest at Mrs May’s withdrawal treaty with the EU.

“The role of the AG requires a combination of independence, expertise and seniority. I can’t speak for her independence but I can speak for her lack of expertise and seniority in the sense that she was a very junior lawyer prior to becoming an MP and with limited experience,” said Stephen Parkinson, senior partner at Kingsley Napley.

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“In many ways this is an insult to the legal profession and a worrying indication that Boris Johnson will not take seriously the legal advice that he’s going to be given,” he added.

One senior barrister said of Ms Braverman: “She is not well known in the profession . . . I think she will have an experienced team in the AG’s office to guide her but she will be watched very closely by those who have concerns about government plans to reform judicial review. The role of AG is often to curb what politicians want to do.”

Ms Braverman has appeared in only a handful of high-profile cases before the High Court, including two involving planning disputes. She also represented HM Revenue & Customs in a dispute over soft children’s toys.

The AG’s office declined to comment when questioned about her independence and experience.

Commenting on her appointment, Ms Braverman said: “One of my first priorities is to continue the government’s work in rebuilding confidence in our justice system, particularly with victims.”

The Labour party attacked her appointment and accused Ms Braverman of confusing parliamentary sovereignty with executive sovereignty in her recent comments.

“The new AG would not have been selected if she wasn’t game for savaging our constitution. But when she invokes ‘parliamentary sovereignty’ in her flamboyant attacks on our judges, she makes the most basic of errors,” said Shami Chakrabarti, shadow attorney-general.

“It wasn’t the judges who illegally shut down parliament, it was Johnson,” Ms Chakrabarti said. “She’s basically arguing for executive domination.”

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Campaigners and lawyers said priorities for the new AG would include fighting for a budget increase for the Crown Prosecution Service and Serious Fraud Office as well as reforming corporate criminal liability rules to make it easier for to prosecute companies for corruption.

The CPS has suffered a 28 per cent cut to its budget in real terms since 2010, putting pressure on an already creaking criminal justice system. The SFO’s performance is also under scrutiny after its conviction rate fell to a three-year low last year, with critics suggesting it needs better resourcing.



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