One side-effect of Suella Braverman’s failed attempt to become leader of the Conservative Party is that her tenure as attorney general will almost certainly come to an end once the new prime minister takes office. That may well be good news for her, since her showing could be enough to get her a senior cabinet position. But it is also good news for anyone who cares about the rule of law, given the damage that her tenure has done to her office.
Braverman’s stint as attorney general will doubtless be best remembered for her attempts to give threadbare legal cover to successive attempts by the Johnson government to break the Withdrawal Agreement with the EU—the treaty that it had campaigned for as a “great” and “oven-ready” deal. On the first attempt—Part 5 of the Internal Market Bill, introduced in September 2020—Braverman’s position was to admit the breach of international law but to suggest that there was no issue for the rule of law as a matter of principle, because parliament had power to pass domestic law in breach of treaty commitments.
On the second—the current Northern Ireland Protocol Bill—Braverman has distanced herself from the idea that the government may be breaching international law, arguing instead that the UK is entitled to breach the Withdrawal Agreement, in ways that go well beyond the limited exemptions provided for in Article 16 of the Northern Ireland Protocol, because it is “necessary” to prevent an immediate and grave peril. It is reliably reported that she had to “shop around” to find any lawyer outside government who was prepared to give credence to that argument, which is universally regarded outside government as hopeless: and any impartial expert will be unpersuaded by her published “legal position,” which contains a series of implausible and unevidenced assertions dressed up as “assessments” and deals with the main reasons why the government’s position is hopeless by ignoring them.
In retrospect, Braverman’s willingness to advance implausible legal argument now looks like the reason why she was appointed in early 2020 in place of the equally pro-Brexit, but determinedly independent, Geoffrey Cox QC (whose speech in the debate on the Bill made it clear that he had the “gravest doubts” over the legality of the Bill and drew attention to the complete absence of evidence in Braverman’s published position).
But Braverman’s tenure will be remembered for other things too. In R v Long—where she personally appeared before the Court of Appeal to argue that the sentencing of teenagers convicted of the manslaughter of PC Andrew Harper was unduly lenient—the court broke with its usual politeness towards serving attorneys general by describing her submissions as “striking” and “unusual” (Court of Appeal code for “hopeless”). It was, the court said, “regrettable” that her submissions had not addressed the relevant guidelines. In that same case a “friend” of hers briefed the Sunday Express that if the Court of Appeal upheld the original sentence it would be an example of “wet, liberal judges being soft on criminals.”
Indeed, loose but politically motivated talk has been a general problem during her tenure. In the Barnard Castle affair, Braverman (ignoring her position as the minister with ultimate accountability for criminal prosecutions in England and Wales) leapt to Dominic Cummings’s defence before any police investigation had been completed. In breach of well-established convention that advice from the law officers (the collective term for the attorney general, the solicitor general and the advocate general for Scotland) is not made public, she conspicuously refused to deny that she had authorised the leak of her advice on the Northern Ireland Protocol Bill. In the run-up to the Conservative leadership, she made in the press and on television a number of politically convenient but legally dubious claims about EU law and the effect of the Northern Ireland Protocol. And during her campaign for the Conservative leadership, she managed to undermine the basis on which the government was defending the Rwanda deportation proposals in the courts—and the government’s own claim that those proposals were compliant with the European Convention on Human Rights—by claiming that “the Rwanda plan can work but we’ll have to leave the ECHR to do it.”
Against that background, it is hard not to regard with some suspicion Braverman’s emphasis on obtaining “innovative” legal advice from government lawyers (there has even been a new award established to recognise “creative thinking”). When read with her complaints about a “Remain bias” in the civil service, the message that government lawyers are likely to hear is that frank but inconvenient advice will be dismissed as biased.
It looks as if Braverman treated her time as attorney as little more than a step on the ladder to high office