5th June 2020
On 23 May 2020, the Attorney General for England and Wales tweeted the following tweet.
Note the Twitter account states in the bio that the tweeter is the Attorney General for England and Wales.
That tweet in turn quoted another tweet where a journalist set out a public statement from Number 10, the office of the Prime Minister of the United Kingdom.
The public statement set out a version of the events of the now infamous excursion of the Prime Minister’s adviser Dominic Cummings.
The statement ended, as you will see from the tweet: “Mr Cummings believes he behaved reasonably and legally”.
Note the very last word of the statement is “legally”.
And if there was any doubt, the journalist’s own tweet repeats it: “legally”.
The Attorney General had therefore tweeted that there had been a clarification that, among other things in the statement, Mr Cummings had behaved legally in respect of that excursion.
Of this there can be no serious doubt: it is the natural meaning of what she tweeted.
She may not have intended to do so, and she may not have even read the statement she was endorsing, but that is what she did.
By way of context, the Attorney General was not the only government minister who tweeted that morning.
Other ministers tweeted about the same time with similar statements quoting the same journalist’s tweet containing the statement.
The impression that gave, of course, was this was a coordinated attempt by ministers to support Mr Cummings in what was then an emerging political scandal.
The problem is that the office of Attorney General is not just another government ministry.
The office of Attorney General is special.
The Attorney General is the government’s senior legal adviser.
The Attorney General superintends the Crown Prosecution Service.
The Attorney General has a constitutional function as safeguarding the public interest in certain legal cases.
The Attorney General can intervene in private prosecutions and bring them to an end.
The Attorney General also happens to the “leader of the Bar”.
Although the office is held by a politician, the role is to be independent.
(For more on the historic office of Attorney General, click into and read this superb though detailed post by the late Sir Henry Brooke, the former appeals judge.)
One role for the Attorney General therefore is not to make public statements on particular cases, for either political or other reasons.
Once the tweet was tweeted there was plainly a problem.
It was not the sort of endorsement an Attorney General should be publishing to the world.
Had there been a mistake?
The current Attorney General is new to the office, and although a barrister she is not a senior one.
So perhaps she did not realise what she was doing.
But as she sets out on her own website:
“In 2010, the Attorney General appointed me to the specialist Panel of Treasury Counsel, which meant that I represented Government Departments in Court.”
So even if she did not realise the import of what she was doing, she should have done so.
Nonetheless, the tweet was evidently an error and she could have swiftly apologised, acknowledging that it was a tweet that should not have been sent.
Had she apologised and retracted the statement, few would have pressed the issue further.
But she chose not to apologise.
She chose to do something else instead.
The shadow Attorney General, rightly, set out his concerns about the matter in a letter.
The Attorney General sent a letter in reply, and is set out in this tweet.
Attorney General has replied to my letter. I sought assurances she would uphold the rule of law, in the light of her tweeting in favour of accepting Cummings' account. She gives no assurance. Instead she gives a disingenuous account of her earlier tweet. pic.twitter.com/Hw1eVsBJ4Q— Charlie Falconer (@LordCFalconer) May 27, 2020
The wording of her letter is strained – and one gets the sense of someone at the Attorney General’s office working hard to word the indefensible.
But it was false of her to state that there was “no question of [her] having offered any public legal view”.
There was more than a “question” of her having done so: she had.
She had publicly endorsed a statement that had expressly described Mr Cummings’ conduct as legal.
And if the false statement in the letter was not enough, she yesterday repeated the false statement on the floor of the House of Commons.
Please watch this video clip.
The Attorney General’s role is to uphold the rule of law. By tweeting her support for Dominic Cummings, when the police investigation was ongoing, she undermined the impartiality of her role. Watch my challenge to her here 👇 pic.twitter.com/hIZ8Pz0RZj— Ellie Reeves (@elliereeves) June 4, 2020
So both in a formal letter to her shadow and in the House of Commons, the Attorney General has falsely maintained that she had not expressed a public legal view on the Cummings case.
This is even though this is directly contradicted by her own tweet.
This is not just a technical or trivial problem, where the Attorney General erred with a daft tweet.
This goes to the confidence the public can have in the holder of that office having sufficient independence within government.
There is even the suggestion that her involvement in this particular case went further than a misconceived tweet.
At cabinet, Attorney General Suella Braverman indicated Dominic Cummings had broken no laws, according to sources.— Sam Coates Sky (@SamCoatesSky) May 25, 2020
Interesting to see if any future police investigations concur with this.
Strong backing for DC from Jacob Rees Mogg too
If this is true, then not only did the Attorney General publicly state her legal view on the merits of Mr Cummings’ conduct but also according to a source gave advice to cabinet on the case.
But even if that is not true, her refusal to apologise and retract her public statement endorsing Mr Cummings’ conduct as legal is a serious ground for concern.
And making false statements about whether she had made such a public statement is incompatible with her office.
For these reasons, the appropriate step would be for the current Attorney General to now resign.
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