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Chris Henley KC discusses the appointment of Suella Braverman to the role of Attorney General and provides an analysis of potential criminal justice issues under the new Government.
With every cabinet reshuffle new faces arrive at the Ministry of Justice. Whilst Robert Buckland was reappointed Lord Chancellor, and Lucy Frazer remains, rather too quietly, as Prisons Minister, most of the rest of the ‘Justice’ team are new. Kit Malthouse, a close and trusted confidant of the Prime Minister from his City Hall days when he served as Deputy Mayor for Policing, has been brought into the team, but for the moment, at least, he is without portfolio. Perhaps his role will be as an enforcer and fixer, the centre’s eyes and ears; increasing the capacity of the prison estate by 10,000 (at a cost of £2.75bn), improving the effectiveness of the police, the CPS and the courts, conviction rates, and the treatment of victims have been identified as high priorities for the new Government. Alex Chalk, a member of the CBA, and tenant at 6KBW College Hill Chambers, has been appointed Under-Secretary of State responsible for the Family Courts, Youth Justice, and Legal Aid. Chalk was a criminal barrister before being elected and has been a consistently supportive voice on legal aid, the importance of early legal advice and the adverse impact of cuts to the public and the profession. So his appointment should be a real positive for us.
A new Attorney-General
In one of the most significant and surprising changes to the cabinet, Geoffrey Cox KC, a strong and independent voice, was replaced by Suella Braverman. Braverman was a junior tenant at No. 5 Chambers in Birmingham, in practice for 10 years, before becoming an MP in 2015. She was a vigorous supporter of Brexit within the Conservative Party, campaigning to leave the EU in 2016 and chairing the European Research Group of Tory MPs between June 2017 and January 2018. She became a Minister under Theresa May but resigned from the Government after just a few months in protest in November 2018, with others like Dominic Raab, the day after May’s draft Brexit withdrawal agreement was published. Is this her reward?
In Cox’s resignation letter he spoke of having always sought to provide ‘candid and independent advice’ as the role requires, citing as a prime example his legal advice to Theresa May in relation to the ‘backstop’ not having the legal effect she had claimed for it. It seemed implicit in those words that he was giving a coded warning to his successor to always do the same. Later in his resignation letter he made reference to the fact that he had introduced Boris Johnson at his leadership campaign launch – ‘you will recall when I introduced you….’ – which perhaps was a message that his sacking was hurtful and more than a little ungrateful. To be replaced by someone with negligible experience at a high level, either legally or politically must have been tough to stomach.
On closer examination the appointment of Suella Braverman fits with the Government’s mantra of ‘getting x policy done’. Ministers not considered sufficiently reliable, or signed up to the programme, have been ruthlessly replaced with more supine and eager individuals. Even the Chancellor of the Exchequer turned out not to be safe. In relation to the former Attorney-General there had been remorseless briefings against Cox in the weeks preceding the reshuffle. It was said that he was not a team player, spoke out in Cabinet meetings in an unhelpful way and might seek to block key legal reforms. The calculation presumably is that new A-G will be more compliant, and this has been prioritised over experience. In retrospect perhaps the timing of an article penned by Suella Braverman published on the Conservative Home website on 27th January was no coincidence and should have offered a large clue to what was coming.
‘The political has been captured by the legal’?
In the article the new Attorney-General spoke out against what she characterised as power being ‘ceded’ to the courts, stating ‘Brexit has served as a flashpoint of the shrinkage of politics and the ascent of law… the political has been captured by the legal’ and decrying ‘the chronic and steady encroachment by the judges.’ Constitutional lawyers might observe rather differently that the Supreme Court decision was all about reaffirming the sovereignty of Parliament, rather than the Executive, which had sought a prorogation without first consulting the Commons or the Lords.
Be that as it may the new Government has made it clear that it objects to the courts frustrating or curtailing the will of the Executive, and made a specific pledge in the Conservative Election Manifesto to do something about it. Action is promised to severely limit the scope of judicial review – ‘…ensuring that it is not abused to conduct politics by another means or create needless delays’. There is no explanation as to how this will be achieved, but it will surely have to go hand in hand with fundamental changes to human rights legislation, or there will remain many routes to challenge the lawfulness of government action. The manifesto more than hints at this – ‘We will update the Human Rights Act and administrative law…..’, but without providing any detail.
The denigration of Judges, and their role, was a feature of the political comment around Brexit. The tone of Suella Braverman’s article suggests this will continue and the choice of the current Chief Law Officer could be seen as a deliberate part of the strategy. Geoffrey Cox has already urged caution on this approach from the backbenches. The wisdom of removing a lawyer of Cox’s experience, confidence and stature, unafraid to provide the objective advice the role required, whatever view one takes of his politics, may have unpredictable consequences.
On Criminal Justice?
What can we expect from the new Government on Criminal Justice issues, and more particularly what is coming for publicly funded criminal practitioners? The manifesto says nothing about legal aid, preferring the rhetoric of tougher sentencing and boosting police numbers. A consultation on implementing a series of immediate changes to some of the most pressing areas of our fees was published on 28th February. Few view it as anything like enough and there is a belief that there has been deliberate heel dragging within the MoJ, irritated that they are having to do anything for legal aid lawyers, but the proposals will embed some important changes to the structure of AGFS.
Establishing the principle of payment for considering unused material is a positive step, and uplifting fees for cracks and evidence heavy cases have long been red lines as far as the profession is concerned. The hourly rates payable for this work remain pitiful, and will need to increase substantially for advocates and litigators before the profession is satisfied.
By late summer the more searching Criminal Legal Aid Review, or ‘CLAR’, should be published. Solicitor and barrister groups have been engaging with the MOJ, many sceptically but so far staying in the room, looking at all aspects of fees for criminal work, in an attempt to ensure higher levels of investment but also to put the money in the right places, for example early advice in police stations, the Youth Court, and cases with vulnerable witnesses and young defendants. I can say from direct personal engagement with him that Robert Buckland is sincere in wanting to improve things, including our remuneration. We also have an ally in Alex Chalk, who like the Lord Chancellor maintains close personal relationships with many lawyers doing publicly funded work. This won’t mean we can expect unreasonably preferential treatment, but rather they are both in no doubt about the perilous and unsustainable state both arms of the profession are in, the physical degradation and demoralisation in our courts, so many of which sit idle as crime rises, and the crumbling and lawless state of our prisons.
If the new Ministerial team are to make the changes so urgently needed they will need the years of savage cuts to the MOJ’s budget to be reversed immediately. The forthcoming budget will show is where we really are.
Chris Henley KC is the immediate past Chair of the Criminal Bar Association and has been nominated for Legal Personality of 2020 in the LexisNexis Legal Awards. He specialises in fraud, homicide and terrorism
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