Why the Attorney General should resign

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.

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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.

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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.

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.

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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.

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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.

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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.

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There is even the suggestion that her involvement in this particular case went further than a misconceived tweet.

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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Comments are welcome but pre-moderated, and so comments will not be published if irksome.

29 thoughts on “Why the Attorney General should resign”

  1. I entirely concur.

    Tribal loyalty, political expediency & regurgitation of Central Office instructions, once again substitutes for integrity, intelligent, independent thought and Office holder responsibility.

  2. I think, on the face of it, the significance of this has escaped the general public. From what you lay out above, her position is untennable -just like that of Mr Cummings. However, since froming his administration, Johnson’s contempt for (and indeed of) the law seems pretty obvious, so unless he needs to bury some really bad news, Ms Bravermann’s position is safe.

    Is there any redress possible from a constitutional point of view if the AG transgresses, but her masters wish to take no action?

  3. I just forwarded your blog to my MP, Damian Collins, who comments, “In respect of the blog post you asked me to comment on, which calls for the Attorney General to resign, it is wrong. The Attorney General did no express an opinion on the legality of what Mr Cummings did. She said that “Mr Cummings believes he behaved reasonably and legally.” That is completely different to saying that he did.”

    Mr Collins does at least agree with me that Dominic Cummings should resign!

  4. David Allen Green says:

    “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.”

    But you had already noted:

    “The statement ended, as you will see from the tweet: “Mr Cummings *believes* he behaved reasonably and legally”. [my stars to highlight]”

    And so, it is not the case that the statement included a clarification that Mr Cummings had behaved legally. It included, in fact, an assertion of what Mr Cummings’ beliefs in connection with the legality and reasonableness of his behaviour were.

    These are different things.

    If No.10’s statement had included the claim that Cummings had “behaved legally” and the AG had tweeted in support of such a statement, she really would have to resign or be sacked.

    But she didn’t tweet such a thing, because such a thing was not available to tweet. Because No.10 had not stated it.

    And that is why the AG remains and will remain in post.

    1. “These are different things.”

      The best that can be said for your comment is that it is a better defence than which she offered.

      But taking your point at its highest: she endorsed a clarification that contained an assertion by Cummings that he had acted legally.

      Even taking your defence at its highest, it is no better than how I set out what she did.

      You say “These are different things” but a moment’s thought shows they are not different things at all.

      But good try.

      1. “she endorsed a clarification that contained *an assertion by Cummings that he had acted legally*.”

        She plainly did not, because that is not what was contained in the statement (or clarification as you describe it).

        The No.10 statement in fact asserted the existence of a claim by Cummings that he *believed* he had acted legally.

        These are different things and the precise difference is important.

        It is the difference between:

        “He acted legally”

        and

        “He believes he acted legally”

        If later Cummings had been successfully prosecuted, both No.10 and the AG would have been able to resist as false the accusation that they had asserted his innocence.

        1. As DAG noted: she began her tweet explicitly endorsing the Cumming’s defence that:

          ‘Protecting one’s family is what any good parent does.’

          She ends it by saying:

          ‘it is wholly inappropriate to politicise it [the situation].’

          And in the middle she says the #10 statement, which includes Cummings’ view that he acted legally, clarifies the situation.

          It seems sophistry to suggest that she is not endorsing Cumming’s behaviour. Or does the AG think that all good parents break the law if there’s a chance (not realised in the present case) that their childcare goes a bit iffy? Or that a clarification stating the behaviour is reasonable and legal is actually saying that the behaviour may have been unreasonable and illegal?

  5. I’m an aging paralegal, so neither particularly successful nor particularly experienced in the law. I wonder then, if someone could help me out with a nagging problem I have with the AG. My problem is that I simply cannot square her stunning CV with her apparent lack of ability. As DAG says, she should know better. From her CV, she simply MUST know better. Yet, every time she speaks, there’s seems to be a lack of understanding of her role and, even, of the law. If I had employed her, I would feel obliged to investigate her CV to see if it had been falsified, the disjoint is that stark. Does anyone else feel this way or is it a purely personal paranioa?

    1. Excellent article. Simple, clear logic. Mr Hughes on the other hand employs a tortuous and illogical arguement to support his erroneous view. Sadly too the content of a CV does not indicate competence. Those of us who have practiced law know that well often from bitter experience. What I don’t understand is how the AG felt any tweet, supportive or otherwise, was appropriate for an AG in the prevailing circumstances. Any tweet on the subject disclosed a significant lack of judgement in my view

      1. This for me is at the heart of the AG’s misjudgement. How easy was it for her – or any politician/official forbthat matter – to state “it is not appropriate for me to comment on an ongoing legal matter at this time” or easier still stay silent. Politicians avoid commenting on matters with that “go to” response all the time. So in this instance it shows just how little she appreciates her role and responsibility that she instead chose to utter something on the matter. She should resign: she has shown poor judgement and acted inappropriately for her office.

      2. Absolutely right: the failure is not to see what the independence of the AG’s role means. Braverman could have tweeted the exact opposite of what she did, and it would have been evidence of the same problem.

        Despite her legal training, and getting to the point of being selected as Treasury Counsel, she didn’t – and seemingly doesn’t – understand that her role demands that she not maintains her independence from government and acts to ensure the integrity of the justice system. Cummings may or may not have broken the law, but she needed to maintain her distance. She failed to do that.

        But much worse, she then appeared in the Commons and failed to acknowledge that she’d made an error by publicly expressing a view. She has made a slip into a serious issue, one that can only now be remedied resigning or being sacked.

        1. “Braverman could have tweeted the exact opposite of what she did, and it would have been evidence of the same problem.”

          Absolutely this.

  6. Hmm. I am a big fan – but not entirely convinced by this.

    You quote the No.10 statement that: “Mr Cummings believes he behaved reasonably and legally”, and say that the A-G, in tweeting her endorsement of it, was expressing her opinion that “Mr Cummings had behaved legally in respect of that excursion”.
    Surely she was only only saying that *Mr.Cummings believed* he had acted lawfully?
    That, in itself, is open to question – but it is a different and less compromising position for her to have taken.

    1. She described the statement a clarification of the situation.

      To say a situation has been clarified cannot logically mean that some of it is still unclear.

    2. Surely “belief” of acting legally is no defence of an illegal act before the law. I am a scientist, not a lawyer, but for the AG to accept that assertion implying that there “could not be” a legal case to answer, because of Mr Cummings (rather perculiar) belief(s), is a mistake that not even a first year undergraduate law student would be allowed to get away with.

    3. Yes, I was going to make that exact point. As I read it, and I may be wrong, it merely says that Cummings believed he acted legally not that he did act legally – there is a difference. As David says it will be interesting to see whether a future police inquiry agrees, assuming there is one. (My guess is that there won’t be!)
      I think the intent of the Tweet is to appear to exonerate Cummings when actually it doesn’t. The intention is to try to convince people that he acted legally when actually it is saying no such thing. Cummings believed lets her off the hook, as for Cummings, it appears that he believed wrongly, and even if he claims ignorance of the law we all know where that leaves him!

  7. Should the AG’s advice have been made public at all?

    I display my age but I can recall how Leon Brittan was forced to resign from the cabinet in January 1986 after one of his officials had leaked a letter from the Solicitor General rebuking Michael Heseltine for inaccuracies.

    Although this was a disgraceful episode – Leon had acted under pressure from Margaret Thatcher’s two most powerful advisers, Bernard Ingram and Charles Powell – it does underline how seriously the advice of law officers has been treated.

  8. The current attorney general has apparently no qualifications in either psychiatry or philosophy and can therefore form no legitimate view on the beliefs of Mr Cummings or indeed anyone else. She may express an opinion that she believes his belief. However, if that were her intention, and I cast no aspersions on her ability to express that opinion, but it seems remarkably unlikely that she would have used those words and that construction to convey that thought.
    Therefore, once can draw the conclusion that she was expressing a view of the legality of Mr. Cummings action.

  9. The article and comments all seem to rest on the belief that the law continues to be held in the same high regard as in the past.

    Unfortunately we are now appear to be in a position where political decisions made by a small group claiming to be delivering the ‘will of the people’ over-ride any ‘inconvenient laws’ and precedents. I think something like this has happened in Europe before.

  10. Well done, David Allen Green. The AG is the Government’s Chief Legal Adviser. If she saw that No. 10 was putting out a statement which did not reflect the legal position, even by omission (i.e. that Mr Cummings believed something even though it was not the case), would it not be her duty as AG to point that out?

  11. The Number 10 statement says as their own view (not just as Cummings’ belief) that Cummings’ actions were in accordance with the guidelines. In describing this statement as a clarification it is clear that the A-G endorses the view that they were in accordance with the guidelines. And this is surely a legal opinion.

  12. I have preserved the AG’s tweet forever as an example of what not to say or tweet before the police had conducted and concluded their investigation.
    Actions and words have consequences and motives. When the abnormal seems to have become the norm it is more important than ever to speak out and take issue. Well done, a thought provoking blog.

  13. As Quentin Skinner explains in his seminal work “The foundations of modern political thought” , one of the most important developments was with the concept of “virtu” during the Italian Renaissance (Machiavelli’s view, in the mionority in his own time having gained fresh currency in the current echo of that period). Contemporary politicians have to display to their retail audience that they possess the sort of virtu that attracts voters, whilst simultaneously these politicians, self-interested and hardly naive must have whast Machiavelli considered crucial to their functioning.

    Of course we have developed democratic constitutions that constrain the Prince’s ability to hurt subjects in the pursuit of his maintenance and expansion of power. I wonder to what extent the lack of an accessible (and preferably ‘written’ constitution leaves too much room for ethical considerations (widely shared by the electorate as fair and to be supported by the State) where formal rules should exist. The argument here may well be a good example. Did the relatively junior (but possibly talented) barrister now occupying this important position break any formal rule that would have been part of a hypothetical formal constitutional system?

    I am pretty sure most continental “ministers of justice” or their direct political subordinates would have stayed away from tweeting anything wrt to a political advisor’s possicle illegal acts, simply because that would compromise their formal duties. Constraints tend to be pretty clearcut. A minister of Justice (or junior minister with a specialist task) will not interfere with what prosecutors do on a casuistic basis. The civil servants (unelected usually) would ignore that interference and if a specific officer would be hurt by a politician within the Justice area for failure to follow instructions of suggestions related to a specific case, they might well seek damages and succeed. The most aggressive tweet would then have been that suggestions about Mr Cummings’ behavior might be investigated by the police and that it would be up to prosecutors to take action, but that there would be no political interference whatsoever. In other words, stating the obvious.

  14. At first I thought DAG had rather shot his fox by this description of the AG’s tweet, “that there had been a clarification that, among other things in the statement, Mr Cummings had behaved legally” because the statement referred to DC’s belief he had acted legally. However, the AG described the statement as clarifying the situation coupled with saying DC did what any parent would and urging that it should not be politicized. She was indeed endorsing his view that he had acted legally, whether she meant it (or thought about it) or not. Her failure to offer a quick apology but instead to double down with a disingenuous explanation should be terminal for a law officer. Perhaps the best evidence is Robert Buckland’s more appropriate response – he understood his duty as LC.

  15. In giving his full endorsement to a man who has so severely undermined the government’s clear message, is the Prime Minister not abusing the public’s trust?
    And by taking up a political position in support of the same, is the Attorney General not doing likewise?

    What recourse is there if the Attorney General, the overseer of the Crown Prosecution Service is misconducting themselves?

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