It’s customary for liberals in these times to see the world as going to hell in a handcart. Reason is on the run, the mob is on the rise and in place of deliberative discourse we have the sort of emotional spasm that gave rise to the Brexit vote.
From another point of view, however, our governance has not become more lawless and capricious, but steadily more rule-bound. On the day that a government—and a country’s fate—turns on the Attorney General’s Geoffrey Cox’s legal opinion and his Brian Blessed baritone in the Chamber, we should pause and consider just how far the rule of law has come.
The office of attorney general is a very messy English mongrel: part minister and politician, part professional legal adviser and part super-intendant of various government legal functions. “The painfullest task in the realm” is how one incumbent, Francis Bacon, described his lot four centuries back.
But in truth, the serious tensions between the supposed independent professionalism of one side of the job and the reality of being a minister who is hired—and potentially fired—by the prime minister have only inflamed much more recently.
Back in 1956, then-attorney general Reginald Manningham-Buller was crystal clear that the Suez plot—for Israel to attack Egypt, providing a pretext for Britain and France to weigh in the name of cooling the hostilities—was unlawful. “It is just not true to say that we are entitled under the [UN] charter to take any measures open to us 'to stop the fighting',” he told the prime minister and foreign secretary. His collective view, with the other law officers, was put to the foreign secretary bluntly: “We have no defence under the charter for what we have done.”
He had been kept in the dark about a war which not only he but also the Foreign Office’s chief legal adviser, Gerald Fitzmaurice, and splendidly double-barrelled solicitor general Harry Hylton-Foster deemed unlawful.
Only the latter, however, is reported as having even “considered” resigning. And in the event, both the solicitor and the attorney stuck with the government in division lobbies of all the crunch Commons votes. Politics, it seemed, simply trumped law in the United Kingdom of those days.
Fast-forward through half a century—a half-century which had, not incidentally, witnessed the evolution of public law, the growth of judicial review and the arrival of the human rights act—and we arrive at Iraq. In legal circles, the I-word brings to mind the secrecy and the contortions that Tony Blair relied on to get his invasion signed off as legit. Fair enough: the publication of conveniently edited “summary” legal advice was a disgrace, and the law as most international jurists understood it was indeed disdained.
But nonetheless, there was still a heartening contrast with Suez in one sense; specifically, the idea of the rule of law had embedded itself more deeply into British governance by this stage, such that Blair knew that it was imperative for his attorney general, Peter Goldsmith, to come up with a possible legal case. He was hooked up with some hawkish American lawyers who took a decidedly minority view that some very old Security Council resolutions could be reheated in order to legitimate war. And sure enough, it seems, his mind was changed—or, at least, changed just far enough to produce the Opinion which could then be edited down.
The swerving about was dodgy enough for one Foreign Office legal adviser, Elizabeth Wilmhurst, to resign. But again, the contrast with her more shameless Suez-era predecessors is telling. The law was already counting for more than it used to.
Coming right up to date, and to Brexit, this looks to be true in spades. The issue this time is not whether the government is about to embark on unlawful adventure or not, but the more mundane question of what legal risk it is running.
True, the very British instinct for official secrecy still kicked in when the government initially attempted to keep the attorney’s advice on May’s deal and the backstop under wraps. But the House of Commons which—like the courts—is these days doing more than it used to in order to hold “the Crown” to account wasn’t having that. It forced publication, which was right and proper: legal privilege cannot be applied in the same way that it does in a private case when the relevant client is not so much the government but the public as a whole.
If being “stuck in the backstop” really is a “risk” (which I’ll grant is very much a matter of taste) then it is surely risk for the country as a whole and not just its administration. Keeping secret legal advice which is of proper concern to the people is another precedent whose trashing should not be mourned, but celebrated, if we want to be well run.
When we saw Cox’s original advice it didn’t disguise that the supposed risk of being stuck in the backstop existed. This played a big part in January’s historic government defeat. Then after May’s Monday night melange of interpretative instruments, join statements and unilateral declarations—all meant to give more legal comfort that the UK could not be held in the backstop against its will—Cox was required to produce his revised Opinion. The risk in some scenarios was reduced, he said, but in others, it was “unchanged.”
That little word is politically explosive, blowing away the cover that some Tory backbenchers and perhaps the Democratic Unionists were looking for to allow them to swing behind the prime minister’s deal. Cox knew it would have that effect, but he didn’t buckle. He’d prepared the ground for awkward honesty when he stated recently he had been “a barrister for 36 years, and a senior politician for seven months.” In other words, where Cox is concerned, the Suez logic is inverted: law trumps politics.
Cox still supports May’s deal, of course, arguing that the legal risk is worth running in the context of a broader political judgment. But the attorney putting his advice in perspective in this way is a long—and healthy—distance from the days of Suez where the prime minister tried to discount all legal considerations, when he hauled in in the law officers and “made clear… that the government’s decision was taken on grounds of policy, not of law,” as the cabinet secretary recorded.
However deranged our politics may seem, it is comforting to take a long view and reflect that there is actually more concern about doing things by the book than there used to be in Britain’s supposed glory days. And yet, as the remorseless logic of Article 50 and the associated legal cliff edge continue to loom, it is perhaps wise to register, too, that it is sometimes possible to trip up not by bending the rules, but rather by following them to the letter.