The Attorney General and Renewed Controversy over the Law/Politics Divide

On 19 ^{October 2021 the Attorney General of England and Wales, Suella Braverman QC MP, delivered the keynote speech at the 2021 Public Law Project Conference. This speech defended the government’s ongoing proposals to reform aspects of judicial review procedure and, more broadly, the constitutional legitimacy of inviting Parliament to overturn jurisprudence it considers to be erroneous.1}

The Attorney General accepted that there has long been debate over the “proper role of the Courts in interpreting Parliament’s legislative supremacy” but suggested that several recent Supreme Court judgments represented a “radical departure from orthodox constitutional norms” which severely threatened the delicate balance of the UK Constitution. The Attorney General cited Adams,²Miller I³ and Miller II,⁴Evans,⁵UNISON⁶ and Privacy International,⁷ as examples of Supreme Court cases that “strained the principle of Parliamentary sovereignty and introduced uncertainty into the constitutional balance between Parliament, the Government, and the Courts.”

While the Attorney General proceeded to welcome signs of a shift by the current Supreme Court back to what she characterised as a more orthodox, traditional, approach to judicial review, she proceeded to defend the government’s recent proposal to reform judicial review⁸ and, the constitutional propriety of the executive deciding that it is “worthwhile and important to invite Parliament to legislate to overturn” judicial decisions it thinks erroneous.

While emphasising the centrality of an independent, apolitical, judiciary to the United Kingdom’s separation of powers, the Attorney General argued that failure to correct Supreme Court judgments which disturb constitutional orthodoxy and expand the judicial remit into more starkly political issues, risked the “legitimacy and reputation of our judiciary, which is inextricably linked to its political neutrality”, which in turn could weaken the rule of law.⁹

The Attorney General’s speech was criticised by some legal commentators.¹⁰ Given the nature of the subject matter, this was not unexpected. However, some critiques about the substance of the remarks also appeared to adopt an underlying but unstated premise that the Attorney General, in giving these remarks, had somehow overstepped her role by pushing at constitutional boundaries either by attacking the judiciary or inappropriately politicising her office.

For example, Joshua Rozenberg QC (hon), one of the UKs most prominent legal commentators, argued that the Attorney General’s remarks were “trumpeting a political message” that politicized her office and undermined the idea she can “act independently in the public interest while remaining the government’s chief legal adviser.”¹¹ The distinguished public lawyer, Professor Mark Elliott, agreed with Rozenberg’s critique. For Professor Elliott, the passage of Rozenberg’s article which alleged the Attorney General was politicizing her office “nicely illustrates how readily the fabric of the constitution can begin to unravel when appropriate restraint, in any quarter, is not practised.”¹² Shortly thereafter, The Economist ran articles that made reference to the Attorney General’s remarks, suggesting that rather “than defending judicial independence, the attorney-general…has joined the attack”¹³ and that the remarks were part of an “anti-judicial agenda … at odds with the separation of powers”.¹⁴

In this article, we make two observations about this controversy. First, we argue the Attorney General’s decision to offer public remarks on judicial review did not push impermissibly at the constitutional boundaries of her office. When one takes a contextual analysis of the Attorney General’s remarks – through a lens which gives due weight to the Office’s dual political-legal dimensions – the natural reading is that they did not involve an inappropriate partisan politicisation of the office. Instead, in making a good faith constitutional critique of important Supreme Court jurisprudence, and defending legislative intervention to correct them, the remarks constituted the kind political activity entirely consistent with the dual legal and political role of that office.

Second, we anticipate this defence will be unsatisfying to those whose concern about the Attorney General’s remarks implicitly stem from a more deep-seated anxiety: that the incumbent dual legal-political model of the UK government’s apex legal advisor is imprudent and should be reformed. On this score, we make the short point that any proposed reform will not be a panacea for the difficult trade-offs between expertise, independence, and democratic accountability around the work of apex legal advisors, and that any alternative models will involve their own risks that require earnest scrutiny.

“The painfullest taske in the realme”,¹⁵ “my idea of hell”,¹⁶ “if it were not so fascinating in scope, it would be oppressive in its demands”¹⁷ – these are the colourful words past Attorneys General have used to describe the work of their office. An examination of the history and nature of the office and the duties associated with it, provides a useful window into what might...