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14 February 2020

Replacing Geoffrey Cox with Suella Braverman is a backwards step. Here’s how to avoid it

Appointing an attorney-general is one of the hardest jobs a Prime Minister has – but there are ways to make it easier. 

By Stephen Bush

Sacking Geoffrey Cox as attorney-general was always likely to lead to something of a downwards motion as far as his replacement goes. By any metric you care to name, Cox was one of the most qualified candidates for the role of attorney-general in the parliamentary party. In terms of being qualified to hold the role, Suella Braverman is, in every conceivable way, a backwards step. But a backwards step was always likely – and the problem for both Boris Johnson and anyone who replaces him as prime minister is the challenges of filling it are likely to grow if left unchecked. 

The role of attorney-general is one of the more difficult for the prime minister to fill. They are essentially the government’s lawyer (in England and Wales, that is). That means the ideal candidate will be a) politically at one with the government of the day b) a fine and experienced legal mind.

Further complicating that task for Conservative prime ministers is that the party is sharply divided on a variety of legal and constitutional issues, the biggest of which are the Human Rights Act, Brexit and the power of the judiciary. There are plenty of credential Conservative lawyers who are aligned with the government on one or two of those – but once you start having to find someone who meets all three criteria the talent pool becomes incredibly shallow.

The argument for Braverman, Cox’s replacement, is that she is ideologically aligned with the government on all three of those issues. The argument against is that she is a relatively inexperienced lawyer. The demands of the former have totally subsumed the latter.

That’s a reversion to the calculation that prevailed during David Cameron’s final phase in office, when he replaced Dominic Grieve, a well-qualified legal professional, with Jeremy Wright, who had been a criminal barrister for ten years but who had ceased to practice law by the time he was appointed attorney-general. May persisted with Wright until May 2018, and it was political expediency around Brexit, rather than the desire for an upgrade that saw her turn to Cox.

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How can this be fixed in the future? The challenge of balancing both a) and b) is one reason why the New Labour governments of Tony Blair and Gordon Brown both used the House of Lords to fill the role, as appointing via the upper chamber means that you can appoint essentially from the whole field of “lawyers who are politically aligned with the government” rather than the narrower field of “lawyers who are members of the parliamentary party”.  (Both New Labour administrations and its three Conservative successors have exclusively used the Lords to fill the job of advocate-general, who is the government’s lawyer as far as Scottish law is concerned, in part for similar reasons.)

This isn’t wholly desirable for other reasons: it means that the government’s chief lawyer can’t be questioned by MPs. Indeed, for most of the Blair government, both the lord chancellor and the attorney-general were in the House of Lords, and for the first year of the 1997 government, the solicitor-general was as well. What the executive gains in having well-qualified law officers, the legislature loses in accountability. One possible solution would be to have a unique workaround for the law officers to be able to take questions in both houses – this is instinctively what I’d do but it would annoy a lot of small- and large-c Conservatives.

There are other routes that wouldn’t involve constitutional innovations. One major improvement would be for party leaders to work to actively groom future attorneys-general via the party whips. A surprising number of lawyers and barristers, at the beginning of their careers as MPs, essentially give up their legal professions, particularly on the government side. This is a relatively recent trend but it actively hobbles the political parties when they want to recruit attorneys-general.

It’s not at all clear to me who is well-served by the number of young Conservative MPs, who have essentially decided to wind down their legal practices upon being elected. But there are two reasons they opt to do so: the first is that the demands of their constituents means they feel they don’t have the time. You could fix that with a badly-needed improvement to how we’re governed: to significantly increase the staffing budgets of backbench MPs.

The other is that new MPs think, rightly, that their hopes of political promotion are better-served by asking obsequious questions in the House of Commons than in continuing to sharpen their legal credentials. But the Prime Minister could change that calculation just by making it known that continuing to practice law is as good a path to the government’s legal positions as working the greasy pole. Doing so would free him from the increasingly difficult balancing act between the two qualifications for a good attorney-general.