‘We enjoy robust and healthy discussions within government. Pressure? All barristers feel pressure. You strain every sinew to help your client find a way out of the mess. But sometimes you have to tell them: the evidence is against us, we have a weak case. I owe it to the nation to be straightforward. I owe the government the truth. And far better that it hears it from me.’
Thus speaks the Head of the Bar, Rt Hon Suella Braverman QC MP, Attorney General since the February reshuffle, when we meet in July. She is possibly the youngest AG ever in the nine-century life of the office, certainly for over a hundred years, and only the second woman to hold the office. She is consulted on the most sensitive and difficult legal issues, domestic and international, facing the government. ‘It’s a heavy paper practice, lots of briefs daily, on wildly different subjects. Reading papers, forming conclusions, providing advice. I love the fascinating variety and the need to switch gears quickly, for example between EU and domestic law, constitutional issues, crime and charity law.
‘It is less common for the question to be whether government has the legal power to take proposed action or not. Mostly it’s about “risk”, different lawful ways of achieving a desired policy objective, some being legally less risky than others but perhaps less beneficial. Sometimes my legal advice will change the final decision, sometimes not. The legal advice is considered alongside other vital factors – security, international relations and financial. Problems can sometimes appear intractable but it’s the talent of lawyers to analyse fully, to find precedents, distinguish principles, and bring to life the arguments for government action, always within the law.’
In this task she is assisted by the Solicitor General, Rt Hon Michael Ellis QC MP, their own small staff in the Attorney General’s Office, and legal advisers across the government legal profession, supported by counsel.
Back in 2010 at No5 Barristers’ Chambers the Attorney was one of those counsel, when she succeeded in joining the Treasury Panel and took cases on immigration and asylum, parole challenges and a ministry of defence inquiry. ‘Previously I had advised and represented local authorities. I found central government work was unusually challenging; immigration officers had huge caseloads which they handled well but occasionally needed correction. My experience of government – and indeed of being a client of government lawyers – deepened when I had a spell as minister in DExEU, the Brexit department, in 2018 – a dream job for me as a supporter of Brexit.’
A unique attraction of government work is the prospect of making new laws. Has the pandemic slowed down the government’s plans for law reform? ‘No. We are leaving the EU; change is afoot, for example in trade and agriculture.’
Another part of the job is her oversight of the main prosecutors – the Crown Prosecution Service and the Serious Fraud Office. ‘I protect the CPS’s independence, ensure it works effectively and efficiently, and am accountable in Parliament and publicly for what it does. I want to drive up performance, ensure adequate resources, and represent their interests. The CPS has been under pressure during COVID: handling new offences and an increased backlog of court cases. Throughout they have worked with the police, the judiciary and stakeholders. My regular one-to-ones with the Director of Public Prosecutions, Max Hill QC, have increased since the start of the pandemic.’
Turning to the critical media coverage of the SFO recently: ‘The SFO has made lots of progress in making the UK a hostile environment for serious criminals. They prosecute a small number of cases but they are very complex cases. They require a monumental effort and the SFO has delivered strong results and outcomes, for example the recent Deferred Prosecution Argeements. They have lots of which to be proud.’
Also on the criminal side, the AG has recently assisted the Grenfell Tower Inquiry by granting undertakings to natural persons, and then extending them to legal persons, so that they cannot now refuse to answer questions on the basis that to do so would risk self-incrimination. The decision was taken in the Attorney’s role as guardian of the public interest and is an example of her upholding the independent functions of her office. It was taken at a time when opponents had questioned her ability to be independent owing to her tweet about Dominic Cummings.
The AG’s interest in politics began with her upbringing in Kenton, North West London. Her parents were first generation immigrants, her mother a nurse from Mauritius, her father a housing officer from Kenya. ‘My parents came to this country with nothing. They were grateful to Britain. It offered them security and prospects. Their admiration of British values was instilled in me. My mother was active in the local community and served as an elected Councillor in Brent. Homeless people and those in crisis would come to our house late at night needing support from my mother.’ Later in life Suella was to help found the charity Africa Justice Foundation with Cherie Blair QC and Philip Riches QC, which supported legal education across sub-Saharan Africa.
Suella started in a local state school and took time to settle into education. ‘I was a late developer, and a bit bewildered until I experienced a wake-up call at secondary school, Heathfield, an independent girls-only school, where I was lucky enough to get support from a scholarship. My father had recently lost his job in the early 1990s recession and times were tough for my family. I realised for the first time that nothing could be taken for granted. I had to take responsibility. I had to work hard myself and I had to make the most of this education that had now become so precious. I initially excelled in French, thanks to speaking the language at home with my mother. I gained confidence over the years as education became the empowering force in my life.’ She ended up as Head Girl and gained a place to study law at Queens’ College, Cambridge.
Why law? ‘I was interested in the mechanics of society. I saw law as the foundation of everything, from buying a house to keeping people safe or running a country. The kaleidoscope of life is found in law. It is a human, and therefore imperfect, way of regulating that cardinal relationship of trust upon which everything relies. Once that trust breaks down disorder and conflict reign.’
Law studies did not disappoint. As an undergraduate she did an Erasmus year at Poitiers, ‘immersing myself in French law and, thanks to the proximity of the Rémy Martin distillery, discovering cognac.’ Then, following her Cambridge finals, ‘what better way to feed my love of France than by spending a year in Paris, at the Sorbonne Panthéon, taking an LLM in French and EU law’.
Why the Bar? ‘Advocacy and independence. I have always been blown away by the art of the advocate, as Richard Du Cann put it. The science of persuasion, the eloquence, the ethics. The ability to enable justice and make a life-changing difference to a client. That look of relief from the client is priceless. But at the time the Bar was largely unknown to me, as the first member of my family even to do a conventional degree. I soon realised that to get anywhere at the Bar you had to use initiative. A Middle Temple scholarship made all the difference to my getting to Bar school.’
Pupillage was at 2-3 Gray’s Inn Square, now Cornerstone Barristers (‘public housing, licensing, bit of planning, general local authority’), and then eventually a tenancy at No5 Barristers’ Chambers. In parallel with these moves, a Pegasus scholarship gave her a ‘most enjoyable opportunity’ of a secondment to New York, to the offices of Hogan Lovells. She passed the NY Bar exams, gaining ‘a great overview of the US federal system and providing me with an international comparative perspective of law’.
In her call year Suella found time to stand for Parliament. ‘I had been active in Cambridge student politics. I was asked to stand in the 2005 general election in a safe Labour seat in Leicester. My campaign was brief! In 2015 I was honoured to be selected to fight Fareham, win and then retain my seat in 2017 and 2019. Politics was a hobby that became a job. With an 80-seat majority there are real opportunities for reform. We have a manifesto commitment to enquire, review and reform, covering human rights, the constitution and democracy.’
At the time of our interview the public consultation about changes to the Attorney General’s guidelines on the disclosure of unused material in criminal cases had just closed. ‘We extended the consultation period owing to the pandemic. I was pleased with the quality of the response. We need to get the balance right to ensure fairness to accusers and accused and to rebuild confidence in our justice system, particularly with victims.’
Shortly after our interview the terms of reference for the Independent Review of Administrative Law were published. ‘It’s also about striking the right balance. Judicial review is an essential check on the exercise of power. At the same time it has been used for political purposes to supplant decisions that should be made exclusively by elected representatives. Speaking from my experience of JR, delay is a huge problem.’
The AG resisted my effort to tempt her to take a swipe at the judiciary for perceived liberal metropolitan bias. ‘I am proud that our judicial system is respected around the world. Our judges are unassailably impartial. They are renowned for their independence, and are a cornerstone of democracy. The quality of our judges is superlative. Naturally I don’t agree with every single decision, and I am disappointed by some. I used to moan enough when I was in chambers! Ultimately you have to live and work with the system.’
Advice to those thinking about a career at the Bar? ‘As someone from a non-traditional background, I am deeply grateful to the Bar. My entry into the profession was fully supported financially through various scholarships. My advice would be: it’s a tough profession, it’s competitive and there’s no guarantee of success. But have faith in the meritocracy of the Bar and in the opportunities it offers. Be positive and can-do. You can make a difference for your client: it’s rewarding when you earn their gratitude and restore their faith in the system. I loved it, whether in court, sharing battle scars in chambers or the camaraderie within the profession. I’m old fashioned but it’s about hard graft, dedication, doing the best for your client, constantly learning. It’s called “practice” for a reason. Your duty is to the court and then to the client. You are part of something noble.’
This interview took place in July 2020.
Editor’s note as Counsel went to press on 18/9/20:
This is the first full-length interview with Suella Braverman as AG and took place in late July 2020, before publication of the controversial Internal Market Bill – which Northern Ireland Secretary Brandon Lewis confirmed to the Commons on 8 September would ‘break international law in a specific and limited way’. Earlier the same day Jonathan Jones QC stood down as Treasury Solicitor and Permanent Secretary of the Government Legal Department. Amanda Pinto QC, Chair of the Bar, responding on behalf of the Bar Council to the Northern Ireland Secretary’s statement, said: ‘It should not need to be said that this country is built on, and subject to, the rule of law. Undermining this vital principle will fatally puncture people’s faith in our justice system, both at home and internationally... an admitted breach of international law in a “specific and limited way” is nonetheless a breach.’ At a remarkable Bar Council AGM on 12 September, silks robustly challenged the Attorney General Suella Braverman QC MP (who was chairing the meeting in her capacity as Head of the Bar and agreed to take questions ) on the Bill’s breach of the rule of law, impact on the UK’s reputation and credibility, use of legal advisers off-panel, and whether the ministerial code was being bypassed. On 13 September Geoffrey Cox QC MP, former Attorney led a Conservative rebellion against the Bill, which passed its first hurdle in the Commons on 15 September. Lord Keen, Advocate General for Scotland, resigned on 16 September. In his resignation letter to the Prime Minister he said he had found it ‘increasingly difficult to reconcile what I consider to be my obligations as a law officer with your policy intentions.’ A government amendment to the Bill was published on 16 September similar to the amendment proposed by Sir Bob Neill MP, Chair of the Commons Justice Committee.*
Article updated on 24/9/20:
* A spokesperson from the Attorney General's Office said: 'On 10 September, the Government published its legal position on the UKIM Bill (available here). This reiterated that the Bill is designed to create a legal safety net and is in accordance with principles of parliamentary sovereignty. The Government maintains that it is asking Parliament to support the use of the provisions in the UKIM Bill, and any similar subsequent provisions, only in the case of the EU being engaged in a material breach of its obligations and thereby undermining the fundamental purpose of the Northern Ireland Protocol and the integrity of the United Kingdom. The Government is clear that it is acting in full accordance with UK law and the UK’s constitutional norms.' The spokesperson added that the Attorney General was pleased to make herself available to answer substantive questions from the Bar on the government’s policy at the Bar Council’s AGM on 12 September.