THE MODEL OF A MODERN SOLICITOR GENERAL: THOUGHTS ON THE CONSTITUTION IN THE TIME OF BREXIT
Robert Buckland QC MP
I am very grateful to Politeia for inviting me to this event and for the opportunity to outline not just the position of the Law Officers at this intriguing point in our Nation’s history but the wider context of where we as a country stand as we prepare to leave the EU, and how it is that the Rule of Law must take centre stage as Britain enters a new phase of what we used to call our national story.The Attorney General and I sit near to the centre of the British State; it could be said that our role in upholding the rule of law lies at the heart of the delicate balancing act between the respective roles of the judiciary, Parliament and Government. It has been observed in the past that the Law Officers occupy an uncomfortable position, straddling the worlds of the law and of Westminster, and that the doctrine of Separation of Powers demands that this must end. I strongly disagree. We are in fact very well placed to help maintain the necessary interrelationships between the several arms of our unwritten constitution, as part of the system of checks and balances that has long been the hallmark of our system. Before I get on to all that, I want to talk about the framework within which the Law Officers, Ministers, indeed, all of us, operates, namely that of the rule of law.
The relevance of the Rule of Law
Perhaps the most grandiloquent, even dare I say romantic, descriptions of our role is that of Guardians of the public interest, namely ensuring that the Government and its Ministers act in accordance with the rule of law. I also must ensure that I safeguard the rule of law when performing my other duties. Precisely what, then, are we supposed to be safeguarding? Is it worth safeguarding? The answer to the second question has to be an easy and resounding “Yes”, but let us look at the first question for a moment, bearing in mind that the phrase “Rule of Law” is something that we are all expected to have absorbed rather than learned, a bit like osmosis. What, then, do we mean by “Rule of Law”?
In Lord Bingham’s seminal work, The Rule of Law, his book, he identified eight principles which he saw as being the key ingredients which contribute to the core principle; ‘that all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.’
At the end of his book Lord Bingham refers to the magnificent frescoes in the Council Room at the Palazzo Publico in Siena, which, I have referred to glowingly in previous speeches having been privileged to see them for myself. With apologies to Doctor Johnson and the Giant’s Causeway, they are not only worth seeing but also worth going to see. On either side are two frescoes by Ambrogio Lorinzetti, one illustrating the “Effects of Good Government” and the other “Effects of Bad Government”. Lornizetti’s depiction of Good Government sees Justice, personified as a woman, gesturing towards the scales of justice held by Wisdom, with Virtue at her feet and a judge sitting at the centre, surrounded by figures such as Peace. His version of Bad Government sees the capitve figure of justice, lying bound before the enthroned, diabolical figure of tyranny, surrounded by figures representing such as cruelty, fraud, division, pride and avarice. Even if you haven’t seen the frescoes you can perhaps imagine the contrast between the scenes of abundant harvests and street dancing in the first painting against the decay, violence and disease in the second. Bearing in mind that Lorinzetti created his frescoes in the late 1330s, is there a better example to support the argument that these are timeless principles? Bingham asks the question: what makes the difference between Good and Bad Government; and answers, quite simply, the Rule of Law. He goes on to describe it as “one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion.”
Here, with apologies to Evelyn Waugh, I have to say as the obsequious Mr Salter does to Lord Copper: “Up to a point, Lord Bingham”. I have always been wary of elevating the phrase the rule of law into an almost mystical concept so that it takes on a quasi-religious quality. There lies the inherent danger that the law becomes something only understood and appreciated by practitioners, remote and inaccessible to those not inculcated into its sacred mysteries. Lawyers are not the High Priests of the Law, whose job is to guard it in a Holy of Holies. The law has to be understood and accessible for all of us, especially in this age of the internet. My work on spreading the benefits of public legal education, delivered by lawyers in schools and other community settings, is part of my mission to demystify the law, to help people to learn about their rights and responsibilities and to help prevent them from getting tangled up in wholly avoidable legal problems. However, I do think that Lord Bingham is on to something when he talks about it as a “unifying factor”. More of this later.
How, then, is this near-religion made real for us and our fellow citizens? One vital public function that is carried out by fellow citizens is that of jury service. In the Crown Court, the principles that I have been discussing come to life. From my two decades of practice, predominantly at the Criminal Bar, dealing every day with the liberty of the individual, the principle of equality before the law was one that I often cited when making speeches for the defence. I would stress that, wherever we happened to be sitting in the courtroom, we were all equal. I asked juries to apply the same fair standards to the accused as if they themselves were sitting in the dock. I most often got a very strong sense that juries understood this almost instinctively. Why? Because the concept when stripped back to its essentials is one of straightforward fairness. Fairness is a concept that is always vulnerable to subjective judgement. What is a fair outcome to the victor is often seen as unfair by the loser. This is where justice comes in.
Justice isn’t only about the fairness of the outcome, but the fairness of the process used to achieve the outcome. Justice is seen to work well when the losing party acknowledges that although they don’t agree with the outcome, the process was a fair one. One only has to cast one’s mind back a few months to the Supreme Court Article 50 appeal to recall that the Government was in precisely this position; accepting the majority judgment as having been delivered in accordance with the rule of law by an independent judiciary following a fair hearing.
Many attempts have been made to summarize the essential ingredients of the rule of law but my personal view is that the declaration made by the International Commission of Jurists at Athens in 1955, is as clear and concise as any: the declaration stated:
“1 The State is subject to the law;
2 Governments should respect the rights of individuals under the Rule of Law and provide effective means for their enforcement;
3 Judges should be guided by the Rule of Law, protect and enforce it without fear or favour and resist any encroachment by governments or political parties in their independence as judges;
4 Lawyers of the world should preserve the independence of their profession, assert the rights of an individual under the Rule of Law and insist that every accused is accorded a fair trial.”
This, then, is a declaration from which few I hope would demur; whilst the law and those of us who practise it will never be immune from criticism, and nor should any of us be in a free society, the rule of law will ensure that those who carry it out in a conscientious and principled way are friends of democracy and should never be regarded as enemies of the people, either by the populist press or by politicians who might disagree with an outcome.
In an increasingly diverse society, it is vital that communities have confidence that the rule of law will apply equally to all, irrespective of race, creed, disability or sexual orientation. A shared belief in the rule of law and its equal application means that we can confidently identify and tackle racist and sectarian values in all parts of our society.
In the recent past, some have been tempted down the path of relativism, which suggests that there can be differing tests and standards of behaviour to be applied in different parts of our society. I reject this approach. It is vital for a stable society that those whose responsibility it is to uphold the rule of law do not shy away from doing so on the grounds of cultural sensitivity. By doing this, we in fact endanger the fabric of our society by undermining the shared sense of what the rule of law must mean, namely equality of treatment under the law.
For example, the seriousness with which society views crimes committed by those who groom young and vulnerable young people, often children, for their own sexual gratification can never be dependent on the culture of the offenders, or the circumstances of their victims. Let us therefore never be in a position again where those who have the responsibility for protecting vulnerable young people and upholding the rule of law fail because of a misplaced cultural sensitivity.
Such a distorted approach not only fails existing victims, it creates new ones. It also sends a subliminal message that somehow, in the United Kingdom, there are communities where the rape or genital mutilation of children is culturally acceptable. This is dangerous nonsense and an insult to those communities.
The Prime Minister’s publication today of the much-trailed audit on the impact of ethnicity on everyday life is a timely reminder that there is more work to be done in order to ensure that the criminal justice system ensures that everyone is in fact treated equally before the law, from stop and search right through to outcomes in our prisons.
I have been making the ethical and constitutional case for the Rule of Law and its equal application, but there is also a solid business case too. We should also remember that the success of the City of London and of UK businesses more widely, including our financial services industry, has been built on adherence to rule of law principles, assisted by the legal services sector. I believe that the strength of this sector is vitally important to the British economy.
What attracts people to do business here is that people know that the rule of law applies so that legal frameworks are provided and adhered to, there is no arbitrary punishment or confiscation of property, and that we have independent judges sitting in courts free of political interference. This is why people choose to invest in our country.
As the Government promotes UK legal services to the rest of the world this very week, our message is simple; the UK will continue to be one of the pre-eminent legal centres in the world and our law firms, courts and exceptional judges are held in the highest esteem across the globe.
The UK legal sector contributed over £25 billion to the economy on 2015, double the sum it generated in 2005. Over 200 foreign law firms from around 40 jurisdictions operate in the UK. Neither should we forget that more than a quarter of the world’s 320 legal jurisdictions are founded on English common law principles.
Our legal services sector is one of our greatest exports and we wish to ensure that it remains at the very heart of our future after Brexit as a global, outward looking, free trading Britain. This will mean cementing the UK’s reputation as the world’s pre-eminent legal centre and taking other steps to ensure the UK remains the fairest, and therefore most attractive place to litigate, resolve disputes and do business.
As we move towards the moment of exit from the EU, now is the time for British politicians, and particularly those, like me, who are proud Tories, to ask themselves what their “Certain Idea of Britain” is, to Anglicise General De Gaulle’s memorable phrase “Une certaine idee de la France”.
What will be the ties that bind us together as a great nation, which I believe we still are? There is still much that binds us; institutions from the Monarchy, our Armed Forces, even the BBC, and occasions such as the national Act of Remembrance. But important those these are, there have also to be key principles that underpin our unity and sense of purpose- that “certain idea”. Liberty and free enterprise under the Rule of Law has to be our lodestar, and even more significant, a Rule of Law that is enforced by the nation state and respected and re-inforced by everyone in it; that is a sound foundation as we start a new chapter. There is, I accept, a danger that such statements sound like facile axioms, but in an age where religious fundamentalism has risen in parts of the world and where true freedom is still not enjoyed by many, then the need for Britain to be clear as to what we stand for remains strong.
The concept of Free Enterprise is itself under serious and sustained attack from the left in a way that we have not seen for a generation. It is tempting for us to seek to go back to the arguments of the 1970s and 1980s in making the Tory case for free markets, but I believe that we can do even better than this by invoking the rule of law. In other words, a vigorous and lively free market whose boundaries are clearly marked and, vitally, enforced not just by the agents of the state but by the participants themselves. In other words, a culture of adherence to standards and an acknowledgement that improvements can always be made.
As a Government, we have made significant progress on this by, for example, implementing new corporate criminal offences of failing to prevent bribery and now, in recent weeks, failing to prevent tax evasion. Already, we have seen the offence of failing to prevent bribery, introduced by the Bribery Act 2010, being used successfully to deal with corporations that fail to adhere to standards of fair business. In light of this, the Government has been gathering evidence on the case for introducing a new offence of failing to prevent economic crime, which can be committed by a body corporate, removing the need for the Prosecution to have to establish evidence of a “controlling mind” who was responsible for the criminal behaviour. This evidential hurdle has been a significant barrier to past prosecutions of corporate wrongdoing, and has done nothing to enhance the view in some parts of our society that there is one law for some and another for the rest of us. It meant, for example, that other jurisdictions were better at holding British Companies to account than we were. This can only undermine our reputation for the detection, prosecution and enforcement of our law.
As part of the call for evidence, the experience of other countries in this field is, of course, of relevance and potential assistance. Take the United States, for example. No-one would seriously suggest that the United States was anything other than a lively, often aggressive, free market economy. What we have seen develop there since their adoption of deferred prosecution agreements, for example, is a spreading trend of corporate monitoring, where independent monitors, paid for by the companies themselves but adhering to independent, rigorous processes, regularly examine companies to make sure that court orders are being complied with and that the law in general is being observed, with duties on the monitors to report breaches to the company and to deal with serious breaches by direct reporting to state authorities. Monitors will also make positive recommendations to companies to change or improve procedures; in other words, companies paying for constructive but robust scrutiny. Already in the UK, the first Deferred Prosecution Agreements, where monitoring is amongst the conditions of compliance, have been ordered, so we will start to see how monitoring can operate here. I very much hope that a new culture will develop where the State is joined by the participants themselves in ensuring compliance with the law and the development of improved systems too.
As Conservatives, we have a duty to counter the damaging narrative of the hard left by strengthening our own concept of corporate accountability within the free market economy. The very future of our country is at stake so we have no choice but to take up the cudgels and make a 21st Century argument for true freedom under the law as opposed to neo-Marxist state interventionism and control.
The Role of the Law Officers
The office of Attorney General is an ancient office of state, dating back to the mid-13th century, when his function was to sue ‘the King’s affairs of his pleas before him.
In 1461 Richard Fowler was appointed as the first ‘King’s Solicitor’, but it is from 1515 that we see the first appointment of a Solicitor General. Sir Richard Rich was an early holder of the office, but his chief contribution to history was his ignominious role in the Trial of Sir Thomas More and his crucial (and false) evidence that condemned More to the block. There is no morality tale here; Rich later became Lord Chancellor and died in his bed, a wealthy man. Another notable Solicitor General in those early days was John Cooke. In 1649 he led the prosecution in the trial of King Charles I, whose subsequent conviction and execution resulted in the creation of Oliver Cromwell’s Commonwealth of England. John Cooke was appointed the first Solicitor General of the English Commonwealth; however, following the Restoration of the Monarchy in 1660, he also became the first, and hopefully the last, Solicitor General to be hanged, drawn and quartered!
By comparison, some of the older offices of state are relative newcomers; the first Home Secretary was appointed in 1782 and the first Foreign Secretary in the same year, coming a generation or so after that other relative newcomer, the office of Prime Minister.
In the late 19th century, at the instigation of Gladstone, the Law Officers were prohibited from representing private litigants so they could concentrate exclusively on government work. This removal of the right to represent private litigants goes to one of the key principles of the modern Law Officer role; i.e. that we act and make decisions in the wider public interest, not on behalf of individuals or organisations or wearing our political hat.
Since 1928, no Law Officer has ever been a member of the Cabinet, although the Attorney attends when required to provide advice on legal and constitutional matters, and has a position on a number of Cabinet Committees.
Some have argued that, by leaving the Cabinet, the role of the Attorney General has lost some of its influence. In reality, the Attorney General has returned to a position of transparent independence, but in a context that recognises the need for the holder of the post to maintain knowledge of Cabinet decisions. Our role as a necessary check and balance in the system remains a necessary one.
There are three broad strands to the modern Law Officers’ work, namely:
- We are Chief Legal Advisers to the Crown and Government,
- We are the Government Ministers responsible for the Law Officers’ Departments, and
- We are “Guardians of the public interest”
But in addition to this, both the Attorney and I are barristers – and we are therefore entitled to appear in Court as advocates on cases relevant to our role as Law Officers. The Law Officers continue to represent the Government in high profile cases, working with our excellent and able Treasury Counsel on a range of topics. A recent example was, of course, the Article 50 litigation. The issues in the case touched on the power of government and parliamentary sovereignty; could the government begin the Article 50 process to leave the European Union without the prior authorisation of an Act of Parliament. The High Court decided that an Act of Parliament was needed. A majority of the Supreme Court agreed. Notwithstanding that the government was unsuccessful in the litigation, it was important that the Attorney General, as chief legal adviser to the Government, conducted the case involving as it did issues of high policy in respect of which both the High Court and then the Supreme Court required assistance from the most authoritative of sources.
I regularly appear as an advocate in unduly lenient sentence cases and contempt proceedings. Recently I appeared in the case of Ian Paterson whose 15 year prison sentence imposed for carrying out invasive and unnecessary breast operations, causing immeasurable harm to numerous victims, was found to be unduly lenient by the Court of Appeal, which increased it to 20 years.
So as you can see, the Law Officer role includes both ministerial and non-ministerial duties, as well as giving effect to the constitutional principle of the rule of law. We are essentially the point at which politics and law meet. However, whilst we are Members of Parliament and therefore politically active members of the legislature and also members of the Government, we must never lose sight of our duty to act fearlessly and impartially when discharging our duties.
Chief legal advisers to Government
In our role as principal legal adviser to the Government, the Attorney General and I uphold the rule of law by providing legal advice to Government on critical decisions involving legal considerations but we are also more generally involved in policy discussions where there are significant legal dimensions and we take a particular interest in policies of constitutional significance.
Our role as the Government’s chief legal advisers was neatly summed up by the former Attorney General, Lord Mayhew of Twysden, who described it as a:
“…duty to ensure that the Queen’s ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principal requirement of which is that the government itself acts lawfully.”
In this role, departments will often come to us for advice on how policy can be achieved in a lawful or proper way. This is reinforced by the Ministerial Code issued by the Prime Minister, which states that the Law Officers must be consulted in good time before the government is committed to critical decisions involving legal considerations.
This aspect of the job is the main reason why, as I have already mentioned, I often feel that we are at the point at which politics and law meet. We are making judgments about lawfulness and propriety which can have far reaching impacts on Government work and policies.
The Law Officers’ advice to Government is not only legally privileged but also confidential. There is a constitutional convention, set out in the Cabinet Manual and the Ministerial Code, that neither the content of our advice, nor the fact that we have advised, is disclosed outside of Government without our consent. Consent is only given in the most exceptional circumstances. The effect of the convention means that Law Officers’ advice, being confidential, is not usually laid before Parliament, cited in debate, provided in evidence to select committees or made available to the public.
This convention stems directly from the constitutional role of the Law Officers in upholding the rule of law. Government should be free to seek and receive frank and confidential advice and to decide, free from external pressure, what sort of legal advice it obtains, at what stage, from whom and in particular whether it should seek advice from the Law Officers. Our advice also forms an important part of Cabinet decision-making. It represents the definitive legal view of the government and has special status in that Cabinet is required to have regard to it. The convention ensures democratic accountability in that the focus of debate should be on the decisions of Cabinet, as opposed to the legal advice underlying them. As such, collective responsibility means that it should be treated in the same way as other confidential elements of Cabinet decision-making.
Government Ministers responsible for the Law Officers’ Departments
Whilst I am a superintending minister, accountable to Parliament for the work of the Crown Prosecution Service (CPS) and the Serious Fraud Office (SFO), those organisations are both independent and free of political control or direction. This is an important protection for the rule of law in the United Kingdom and one that I staunchly defend. Prosecutors are best placed to deal with questions about individual cases or policy and it is not for a Law Officer to interfere in their independent assessment of the strength of the evidence or whether the public interest requires a prosecution.
However, as those of you who have ever watched questions put to me and the Attorney General in Parliament will know, the performance of the prosecuting departments is scrutinised rigorously by MPs, and I and the Attorney General receive regular briefings on the work of the departments, as well as having monthly meetings with the respective directors to discuss performance. I also regularly visit CPS Areas to meet staff and senior management and, whilst there, I also endeavour to meet the local crown court judges so I may get a proper feel for the way that the criminal justice system is operating at the coal face.
Guardians of the public interest
The second of my roles as a Law Officer is that of Guardian of the Public Interest, which I discussed earlier in the wider context of the rule of law. It refers to various functions I am given in statute which I exercise independently of government, and as a democratic check on legal and judicial processes.
Some of these public interest functions are designed to act as a safety net to prevent or remedy injustice or inefficiencies in other parts of the justice system. As such they contribute to the role that I play in maintaining the Rule of Law.
Whilst the functions are diverse in nature, they are united by a common aim, namely to uphold a fair and efficient justice system. There are too many functions to list, and I am called upon to exercise some of them only very occasionally, but the main ones I exercise are the power to refer certain types of criminal sentence to the Court of Appeal as Unduly Lenient, which takes up a lot of my time, the power to apply to the High Court for an inquest to be re-opened, the granting of consents to prosecute certain terrorism, explosives and other offences where there is a strong public interest element and my powers to act on alleged contempts of court.
It has been a pleasure to address you this evening and I hope that you have gained some insight into my role as Solicitor General in promoting the rule of law on a practical level and what I think we as a Party need to do in order to help define what we stand for as we move through Brexit.
I hope that I have, by illustration, demonstrated the useful role that the Law Officers play as lawyer-politicians. Whilst we might defy the US/Montesquieu vision of full Separation of Powers, I say “a good thing too”. Being present participants allows for greater understanding and, I believe, a sense of greater comity between the various arms of our constitution. In other words, familiarity breeds respect, and the necessary balance is maintained.
In the just over three years during which it has been my privilege to be a Law Officer, I have seen at first hand the importance of having, within government, Law Officers who are accountable to Parliament and the public, who are expected to, and do, stand up for the rule of law and are able to tell ministerial colleagues when there are things that, legally, they cannot do, or indeed must do.
The Law Officer role is a vital one in our thriving democracy and one that I am proud to play.
*Robert Buckland QC is Solicitor General and has been the Member of Parliament for South Swindon since 2010.