Lord chancellor must ‘rein in’ colleagues

But attorney general continues to act as if she is no more than a politician

Today’s Telegraph carries a wide-ranging interview with an ambitious member of the government. The newspaper leads its account by quoting the minister’s criticism of of government officials:

Some of the biggest battles that you face as a minister are, in the nicest possible way, with Whitehall and internally with civil servants, as opposed to your political battles in the chamber.

The minister also blames the European Court of Human Rights for an “expansionist, politicised application” of the human rights convention.

She criticises the “flippant” approach of the Halifax for inviting customers to close their accounts with the bank if they do not like its policy of allowing staff to display their preferred pronouns.

And, after Nicola Sturgeon announced last week that the legality of a proposed independence referendum would be referred to the Supreme Court by the lord advocate, she speaks of the “incredibly serious implications of what the Scottish government is proposing”.

None of this would raise an eyebrow if the minister was anyone other than Her Majesty’s attorney general, Suella Braverman QC MP. It’s expected that she — perhaps with the UK government’s Scottish law officer Lord Stewart of Dirleton QC — will be the formal respondent to the lord advocate’s reference. When considering whether the Scottish parliament has the power to authorise an independence referendum, the Supreme Court justices will want to be addressed on the law, not the attorney’s view on whether independence for Scotland is “workable”.

So it seems appropriate to remind the lord chancellor, Dominic Raab, of his duty to “rein in… colleagues who say things which sit uneasily with the rule of law or judicial independence”. That duty was expressed by none other than the lord chief justice of England and Wales, Lord Burnett of Maldon, in a lecture at the Hebrew University of Jerusalem at the end of May. You can read my account of the lecture in a piece for The Critic, now published online.

Lord Burnett of Maldon at the Hebrew University of Jerusalem, 30 May 2022

Of course, Burnett was not referring to the interview given by Braverman a month after he spoke. His lecture discussed more generally a duty the lord chancellor should “bring to the cabinet table” — where Braverman sits by invitation, although she is not a cabinet minister.

“Lord chancellors must be ready to deploy their authority and say ‘no’ in circumstances where such a response may be unwelcome,” Burnett reminded Raab, without mentioning him by name.

In addition to reading my analysis of Burnett’s lecture, you can listen to it — and my question to him at the end — by clicking the audio link below:

I have argued before that Braverman, the first attorney general in history to have a full-time special adviser (“spad”) of her own, has undermined the fragile paradox of a government minister who is sometimes required to act in an entirely non-political way. I wish Braverman well with her political ambitions, but they are becoming increasingly inconsistent with the post she now holds.