The Attorney General must be careful not to overstep the mark on Brexit

Updated: Dec 10, 2018

By Felicity Williams and Chevan Ilangaratne.

Geoffrey Cox QC MP – the government’s senior law officer - is sworn to impartiality in the undertaking of his duties. On Brexit, he has risked crossing the tramlines of the role, potentially jeopardising public confidence in his office and faith in the rule of law.

So, amidst a swirl of contempt of parliament proceedings and rumours that the Attorney General has been on the point of resigning, the government has finally published the full and potentially politically toxic legal advice on the Prime Minister’s Brexit deal. But the furore around non-disclosure of legal advice is not the only controversy looming over the head of the Attorney General.

An ardent Brexiteer, and the government’s senior law officer, Geoffrey Cox QC MP appears to have wavered in the tramlines of impartiality on a number of occasions. At this year’s Tory conference, he gave a rousing speech founded on the ‘Brexit means Brexit’ mantra, seemingly inflexible on the issues that beset the 2016 referendum result. From then onwards, Cox has ostensibly grown in stature and authority within No 10, inviting consternation about the limits of his duties. In October, it was reported that as a non-cabinet minister, he commandeered a cabinet meeting to urge Theresa May not to succumb to the EU’s demands on the Northern Irish border, bringing discussions to an unwelcome halt. The said meeting was described by those privy to the deliberations as splitting opinion amongst senior ministers into “the Geoffrey Cox Gang” and other pro-EU ministers. More recently, the Attorney General was rebuked by the Tory MP Marcus Fysh, who accused him of straying into political territory in comments made in another cabinet intervention. As he stood in the Commons this week booming “grow up and get real” at the opposition benches, while the text of his advice to the Prime Minister was withheld, he seems to have swerved off the tramlines altogether.

When the government of the day needs legal advice on an important issue, the Attorney General is usually the person to whom they turn. We saw that in the lead up to Britain’s invasion of Iraq in 2003 when the then Attorney General – Lord Goldsmith – provided confidential advice to Tony Blair’s cabinet on the legality of this course of action, receiving heavy criticism after it was leaked to the public some two years later. As such, it was not surprising when the government was defeated in a Commons vote last month demanding the full publication the Attorney General’s advice to the Prime Minister on the government’s Brexit settlement with the EU. The advice was not forthcoming, prompting opposition MPs to force contempt of parliament proceedings against the government for non-compliance with their instruction of disclosure. This week and yet again, the government was defeated and Theresa May’s government became the first in this country’s history to be found in contempt of parliament.

Sadly, the Attorney General’s advice debacle is just one of many examples of this government’s reluctance to keep parliament and the public in the loop over their management of Brexit. A fundamental tenet of independence in constitutional law is that no one should be a judge in their own cause. Although the Attorney General cannot reasonably be expected to demonstrate the level of independence premised by a judge , it is incumbent upon him to to shy away from driving government policy. Failure to do so could undermine this public office and have a corrosive effect on public confidence in the operation of senior law officers in government. If impartiality is comprised, the rule of law will suffer as a result. The Attorney General must be careful in these legally and politically complex Brexit times not to overstep the mark.

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