Attorneys-General and ignorance

January 10, 2023 09:40
Photo:  Hong Kong Court of Final Appeal

Two recent outings by ex-Attorneys-General, one in the UK and the other in Hong Kong, in which they both demonstrated staggering ignorance of the law prompted me to consider the shortcomings of various holders of this important office of State.

Though the origin of the noun attorney is derived from the mediaeval French, the concept is better caught by the Latin term attornus regis which was first used in 1253 AD. The first holder of the office of Attorney-General was William de Boneville in 1277AD.

The sense of the role is captured by the transfer of the sovereign’s duty to guard the public interest but the duties extend to protecting the rights of both the sovereign power and the public.

In practice, one may be forgiven for characterising the responsibilities as prioritising the interests of the government over that of the public.

Put in simple terms, the Attorney-General is the government’s principal legal advisor. In England and Wales the role is held by a barrister, in Hong Kong it has been held by both barristers and solicitors.

With the reversion of sovereignty back to China in 1997 the designation was changed to Secretary for Justice which, in my opinion, was ill-considered because the interests of government and the public do not always equate and those functions ought, properly, to be separated.

A further argument in favour of distinguishing between the role of legal advisor and head of the justice department is to emphasise the distinction between law and politics. A key justification for a barrister as Attorney-General is the Bar’s reputation for impartial legal advice. Fudging the difference between law and politics is a surefire recipe for trouble.

A stark illustration of this was provided by Tony Blair’s Attorney-General, Peter Goldsmith QC. Initially, he advised that to invade Saddam Hussein’s Iraq would be contrary to international Law. Subsequently, he changed his advice. Analysis of the evidence he gave to the Chilcot Inquiry is indicative of a blurring of the distinction between the politics and the law.

I may be less critical of Peter Goldsmith because I knew and respected him before he took up the job. But irrespective of what view one takes of the integrity of his advice to Tony Blair, his answers in cross-examination are informed by genuine perspectives of international law.

I have no such respect for the conduct of Suella Braverman KC when she appeared, in person before the Court of Appeal in R v Long [2020] EWCA Crim 1729, to argue that the sentences passed on two offenders convicted, amongst other things, of manslaughter, were unduly lenient.

The convention in England is that the Attorney-General only appears in court in truly exceptional cases. Just how exceptional a case has to be can be judged by The Belmarsh 9 case in which the Attorney-General appeared in person to argue on behalf of the government that the indefinite detention of foreign prisoners in Belmarsh prison without trial, under section 23 of the Anti-Terrorism Act was incompatible with the European Convention on Human Rights.

The appeal against what she claimed to be unduly lenient sentences appears to have been Ms. Braverman QC’s first appearance in court as Queen’s Counsel, a status to which she was automatically appointed on becoming Attorney-General, as distinct from applying for it on the basis of her practice and reputation.

Yet, despite advancing the principal grounds of the government’s case on this appeal, she seems to have left the heavy lifting of making the submissions to another QC whom she was leading.

What is most striking about Ms. Braverman QC’s contribution is what the Court of Appeal described as “to say the least, an unusual submission.” The argument she advanced in support of her claim was that the sentences were unduly lenient because the judge was wrong in failing to depart from the relevant sentencing guidelines.

Such a convoluted and contradictory submission should not, perhaps, be so surprising in light of Ms. Braverman QC’s extreme right wing political bias and her bizarre advice to Prime Minister Boris Johnson that he could ignore the Northern Ireland Protocol based on “the Law of Necessity.”

This law is recognised by Article 25 of the International Law Commission’s Articles on State Responsibility but it is traditionally defined as a situation in which the sole means by which a state can safeguard an essential interest from a grave and imminent peril is to sacrifice another state’s interest of lesser importance.

What imminent peril?

However, it cannot be invoked, where the state invoking necessity has contributed to the onset of that peril, i.e., where the UK government had drafted and agreed to the very agreement it wanted to break.

Which leads us, inevitably, to the submissions advanced by Hong Kong’s Secretary for Justice – though, significantly, not by him in person – in support of his objection to the admission of Timothy Owen QC to represent Jimmy Lai at his trial.

It was intriguing to observe how the Secretary for Justice’s submissions changed at each subsequent hearing, just as did his counsel, perhaps indicating successive counsel’s growing unease with the increasingly desperate arguments being urged exponentially on the courts.

But the high point was the attempt by an ex-Secretary for Justice instructed by the current Secretary for Justice, to introduce a totally new argument – for which there was no evidential basis – in order to persuade the Court of Final Appeal to hear the case; inevitably and roundly rejected by the Court. Even a novice barrister knows that the CFA will not entertain a submission that has not been aired in the lower courts, whether or not it has evidential substance.

The old adage ignorantia juris non excusat applies not only to lay folk but to those holders of high legal office. But the bigger question is whether these false arguments are genuine ignorance of the law or an impermissible political veining of the law?

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King's Counsel