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The attorney general should not always be a ‘team player’

The cabinet should not expect the next attorney general to 'massage' legal advice to make it more palatable

Geoffrey Cox's involvement in party politics led to confusion about the role of attorney general in government. The cabinet should not expect his successor to 'massage' legal advice to make it more palatable, argues Raphael Hogarth.

“I had not expected a frontline political career,” Geoffrey Cox told an audience at the Institute for Government shortly before stepping down from the role of attorney general (AG) in the reshuffle, “and to some extent the peculiarity of the attorney general role means that I still haven’t had a frontline political career.”

That might be a little modest: Cox stole plenty of the headlines in his time as AG. Indeed, it was the government’s refusal to publish his legal advice in December 2018 that led to its being held in contempt of parliament for the first time in history. He also made some combative appearances in the Commons, at one point telling parliament that it was a “disgrace” after the Supreme Court’s decision on the 2019 prorogation of parliament.

But his statement speaks to a tension inherent in the role. The attorney general is at once professional lawyer and partisan politician. Sometimes, the politician will want the law to say one thing, but the lawyer will think it says another. Brexit, more than any political issue since the Iraq war, has laid bare this tension.

Brexit – and Geoffrey Cox – have catapulted the office of the attorney general into the spotlight

Brexit is, more than most policy issues, an intensely ‘lawyerly’ affair. By definition, it is a change in the way laws are made and enforced. The process is itself governed by rules (not least Article 50), and in the European Union the UK is negotiating with a passionately rules-based organisation.

It is no surprise, then, that the attorney general has been an important political figure in the years since the 2016 referendum. When Theresa May negotiated changes to the Irish ‘backstop’ last year, it was the AG’s advice that the cabinet, and the House of Commons, wanted on the issue of the day: did May’s “binding changes” make it any more likely that the UK could exit a customs union without the EU’s agreement? (Cox’s answer: a resounding no.)

Yet it is not just Brexit that has focused attention on the AG. Geoffrey Cox has done so too. Appointed in part because he was a ‘true believer’ in Brexit, he quickly made himself a prominent party-political figure when he gave a speech introducing the prime minster at Conservative Party conference in 2018. Then, far from just advising on the Brexit negotiations, for a period he went to Brussels to conduct them.

Geoffrey Cox’s approach was more political than that of his predecessors

Geoffrey Cox’s tenure was quite a departure from the approach of many of his predecessors. Attorneys general have often taken the view that political distance gave their advice credibility; Cox believed that political involvement gave his advice purchase. As he said at the Institute, he considered himself to have “a perfect right in cabinet to comment on all matters of policy and to participate in the fashioning of policy of the government”.

This view is not shared by all. Former AG Dominic Grieve told the IfG that it would “a very dangerous thing” for the AG to be “pontificating in cabinet”. Indeed, that an AG’s legal advice is given more weight if they stay above the political fray is an opinion long held in Westminster: from 1928 to 2005, the AG did not even attend cabinet habitually.

The attorney general cannot always think like a ‘team player’

Geoffrey Cox’s political approach to the role of AG may have created expectations, among cabinet ministers and MPs, that he would give politically convenient legal advice. If it did, he failed to meet them, leading to briefings from No.10 that he was “not a team player”. To an extent however, he could not be – as Cox told the Institute, it is “not acceptable for an AG to massage and improve his advice for the purposes of party politics.”

No.10 should not expect Cox’s successor, Suella Braverman, to give advice that is any more convenient than his, regardless of her politics or any political difficulties the government faces. When the cabinet makes legally sensitive decisions, it must do so on the basis of advice that is objective and accurate. Otherwise, the government is asking to lose in court when that advice gets tested.

No.10 may want team players in the cabinet –  but the attorney general’s job is sometimes to think more like the referee.

Keywords
Law
Position
Law officer
Administration
Johnson government
Publisher
Institute for Government

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