With Suez, politics trumped law. With Iraq the balance began to shift—and with Brexit the original logic has been inverted. Amid the fray, we can take some comfort from thatby Tom Clark / March 12, 2019 / Leave a comment
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…