4 August 2022
Here is an amusing tax case from 2014, from eight years ago today.
You will see why I am mentioning it.
The case was about whether a toy was a stuffed toy or not.
In particular, as the tribunal put it, it was about “how two soft children’s toy animals that contained a soundbox that produced soothing sounds, intended to assist babies and children to sleep, should be classified for Customs purposes”.
If the toy was regarded as a stuffed toy its classification would have one tax consequence, and if it was not a stuffed toy it would have another consequence.
And so, eight years ago today, in Bedford Square in London, a two-person tribunal earnestly debated with two barristers about the nature of stuffed toys.
The judgment is a joy:
“The Appellant’s principal contention had been that when there was no definition of the word “stuffed”, one should look to the intended use of the product to decide whether it was stuffed. In that quest, the word “stuffed” should be taken to suggest a toy designed to be cuddled and played with by babies and children.”
Against this, the HMRC’s barrister contended:
“The products could hardly thus be said not to be stuffed, when as a pure physical matter of content they were stuffed and they plainly looked to be stuffed, and when, even on the Appellant’s test that “stuffed” meant that the toy was suitable to be cuddled, it was indeed asserted that it was a “cuddly companion and toy”.”
The tribunal considered the point carefully:
“While there is no definition of the word “stuffed” in the present context, its meaning is relatively obvious, and indeed in turning to consider the function of the product and then asserting that stuffed products can be identified because they will be soft to cuddle, the Appellant itself assumes the same obvious meaning of “stuffed” in reaching the conclusion that it must mean something along the lines that will make a toy cuddly. And what makes a toy cuddly is of course the insertion of stuffing…”
And so the tribunal concluded, with a straight face:
“this product is a cuddly toy, and that it is stuffed.”
All good fun – and it is one of those cases, like the Jaffa Cake case, which lighten up the reports of tax cases, and so add to the gaiety of the nation.
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But why is this case of interest on 4 August 2022, eight years later?
Because the victorious HMRC barrister in that case is now the Attorney General, Suella Braverman.
And the case is significant because it shows that Braverman’s bread-and-butter at the Bar was everyday public law cases.
It is often contended that Braverman is not qualified or sufficiently experienced to be an Attorney General.
But in fact she was a perfectly competent barrister specialising in public law cases and indeed was appointed to the Attorney General’s panel to conduct cases on behalf of the government.
According to Bailii, she also acted in planning cases, both successfully and unsuccessfully.
As far as can be ascertained, the Attorney General had a good, wide-ranging public law practice, including advising on human rights law.
This blog is not a fan of the Attorney General, but it is important to be fair and accurate in what can be criticised.
It is sometimes assumed – perhaps condescendingly – that the reason why some politician-lawyers are illiberal about the law is because they do not really understand the law.
But the thing about Braverman and also the Lord Chancellor Dominic Raab is that they do have experience in and knowledge of public law.
Some may say that makes their illiberalism worse – for they “should know better”.
I think that is the wrong approach.
I think one should credit the illiberals with knowing and understanding the relevant law – it is just that they do not care for it.
And this means that those of us who are liberal in their approach to the law need to make a more compelling case for it than assuming the conservatives do not “get it”.
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One swallow does not make a summer. We need to look, when considering politicians, whether they are acting a s a lawyer, that is arguing what the meaning is of certain words or phrases might be in a legal argument, and when advising the government or a government minister whether some action may not be arguably in court or elsewhere, illegal, but cautioning that person on the wisdom of such action in a broader moral sense For example jus bellum isn’t just about a particular law but a group of general principles which are based on moral outcomes. This seems to take such advice beyond what might win a lega argument and what is morally just.
Why is it important for legal officers to have experience of the law and yet other politicians can run their departments well with no experience of their subject? Estelle Morris, Secretary of State for education, resigned in part because she did not consider herself qualified for the role and yet she had been a successful teacher. Doesn’t the lack of relevant experience often make better leaders?
The Attorney-General’s core job isn’t running a department; it’s acting as principal legal adviser to the government. This makes the position of AG very different from, say, the position of Secretary of State for Education.
The Department of Education doesn’t do any teaching at all; that is all done by schools and universities. Having been a teacher might give you useful background for running that department, but it gives you zero direct experience of what the Department actually does.
Whereas the AG and her Office do provide legal advice; that’s pretty much all they do. Policy and administration work analogous to what the Dept of Education does is carried out by the Department of Justice, headed by the Secretary of State for Justice, who doesn’t need to be a lawyer and often isn’t.
I think there’s a tendency to underestimate just how difficult a job politics is, particularly ministerial roles. So there is a tendency to treat people who look to be out of their depth (such as Raab or Dorries) as idiots, when it would be more reasonable to assume they’re smart people who are just doing a job that either doesn’t suit them or is a bit more senior than they’re capable of. Dorries in particular is clearly no good at all at the cabinet role she allegedly occupies, but I seem to remember her being a junior minister responsible for mental health and doing that job quite well, at least by the standards of the current government.
Baverman is a very poor cabinet minister and her political views cause her to try to defend some extremely weak legal positions. Clearly she isn’t stupid in the everyday sense of the word – she would never have become a barrister if she wasn’t considerably smarter than me, for example.
But we judge our politicians by the standards of politics, not by how they compare with people who haven’t put themselves forward for such demanding jobs. So I’m afraid learning that she was a competent barrister doesn’t change my opinion that she allows her political objectives to persuade her to try to argue that black is white.
I think what you’ve said there seems correct – she clearly can’t be thick if she’s managed to become a lawyer, and a barrister at that. She does, however, always appear to be stupid but that may well be because she’s politically compelled to pretend to believe stupid things. As well as being politically compelled to do legally suspect things, like the alleged leaking of the NI protocol legal advice.
And of course, thanks to the AG’s government, we are all….
Of course they may in fact care for the law just fine, they just care for their own careers more.
Thanks for the partial reset. I still question whether she is good enough to be a QC on the basis of her legal skill and probity rather than her political appointment. And her view of the law governing the relations with the EU is disturbing. It cannot end well.
I do admire your committment to fair comment. In Braverman’s case I cannot judge her ability as a lawyer. My problem is her disrespect for truth and the rule of law. Either should rule her out as AG.
One of the most important elements that David illustrates here is that of track record.
If we have the opportunity to review the actual conduct of a candidate AG when they are practicing law, then this might serve as a reasonable indication of the way they would conduct themselves in the performance of their duties to the nation as AG.
For example, then Attorney General Lord Goldsmith twice advised then Prime Minister Tony Blair on the legality or otherwise of the second invasion of Iraq. Nobody in Blair’s cabinet thought to ask if the invasion was illegal – and Blair chose not to share Goldsmith’s advice with the cabinet. Most importantly, as the decision was discussed, Lord Goldsmith failed to speak up. (Source: Chilcot Report).
This would lead me to suggest that it would be helpful if there was a mandatory requirement for any candidate Attorney General to have practiced law for say a minimum of 5 years. This would give all interested parties a body of evidence of the candidate’s mettle on which to base a reasonable opinion.
I don’t have UK-based examples to quote, but over the years I’ve followed a number of personally relevant technology cases in the United States (in particular “The SCO Group vs. IBM”, where the former attempted to claim ownership of critical intellectual property in an Operating System called Linux, along with Oracle vs. Google”, where the former attempted to claim onwership of a feature of software that would have given them broad rights to “claim ownership of the world”.
In these two cases, I’ve watched as law firms and attornies have “played fast and loose with the law”, have engaged in shameless conduct and manipulative practices in order to “win” for their clients, despite the fact that the law identifies attornies for both plaintiff and defendant first and foremost as “Officers of the Court” and their primary loyalty is supposed to be to the Court.
Sad to say, some take their loyalties to their clients with a little too much zeal and run right up to the line of malpractice and Court sanction to do so.
I’m not suggesting that Ms. Braverman is anything less than an exemplary member of her profession, but, as the saying goes: “Actions speak louder than words”. The only way to know is to see such a candidate in action.
Dominic Raab is clearly not stupid. He studied law as an undergraduate at Oxford (unlike many of his cabinet colleagues, who studied PPE) and then as a postgraduate at Cambridge. He completed his two years as a trainee solicitor at Linklaters. He left on or shortly after qualification to work for the government legal service for around 6 years. He stopped practising law and worked as a political aide for about 4 more years before he was first elected to Parliament in 2010. In terms of time spent on actual, day-to-day legal work, he would be a mid-level assistant solicitor.
It is a matter of concern to me that even that slight experience compares favourably to the legal experience of some of Raab’s recent predecessors as Lord Chancellor – such as Chris Grayling (history, TV, PR) or Michael Gove (history, journalism) or Liz Truss (PPE, accountancy, think tank) or David Liddington (history, business, special adviser). Other recent office holders – David Gauke and Robert Buckland – had considerably more experience of working in private legal practice.
And in the past we had heavyweight legal practitioners serving as Lord Chancellor such as Lord Mackay, Lord Irvine, Lord Falconer. Ken Clarke was a proper QC before his first ministerial office.
Since Jack Straw and Chris Grayling, that is very much the exception. In my view, few recent Lord Chancellors had enough experience of the law before they were appointed. But that perhaps reflects the lowly position to which the Lord Chancellor’s Department (now Ministry for Justice) has fallen in the pecking order – it now seems to be seen as just a small and relatively unimportant government department. There seems to be little recognition that the criminal and civil law, and the mechanisms for its enforcement, hold together our society and our democracy, and as they are cut and cut, people give up and find other means.
Suella Braverman is clearly not stupid. Suella Fernandes (as she then was) studied law as an undergraduate at Cambridge, then as a postgraduate in Paris, and worked as a self-employed barrister for about ten years before she was first elected in 2015. She was on the Attorney-General’s C panel (the most junior one, which currently pays around £80 an hour) from 2010. She probably has more practical legal experience than Raab.
But there are few recent AGs with as little legal experience as she had before she was appointed – Jeremy Wright is another: about 9 years before he was elected. Neither had the 20 or 30+ years of experience of Geoffrey Cox, or Dominic Grieve, or Patricia Scotland, or Peter Goldsmith. All QCs before they were appointed. Let alone the stature and experience of David Maxwell Fyfe, or Hartley Shawcross, or Samuel Silkin, or Michael Havers.
I fear that reflects the position being relegated to giving a thin veneer of legal cover for the policy positions the government wants to take, rather than delivering robust legal advice on what is lawful and what is not.
“Dominic Raab is clearly not stupid. ”
So there must be some other explanation for the impressive tally of stupid things he has said and done – but it’s not at all obvious to me what that might be…
His ability to pass examinations in no way precludes the possibility that he’s stupid anyway: there are lots of well-qualified idiots in the world.
Clearly