The role of an Attorney General has become more important, says Cox, because we no longer have a senior member of the judiciary sitting in the cabinet. The Lord Chancellor used to be the interlocutor for the administration of justice at a very senior level and Cox is keen to point out that ‘although the post remains, it is now combined with a political ministry and so may not have the same exclusive concentration upon the rule of law as was previously the case’. He states that he sees the office of Attorney General now as an ‘enhanced role to ensure that the rule of law is at the centre of everything that government does’. He thinks it is important to ‘reinforce and remind every part of government that we have one of the most distinguished and respected judiciaries in the world’, and that it is the function of his office and government ‘to defend the judiciary and defend the rule of law’.
Cox is also a fierce defender and passionate promoter of the Bar. He points to the kindness and generosity he has experienced over the past 36 years, from members within and without chambers. He wants to see the profession preserved and progressed, and maintain its proud position at the centre of our constitution and the administration of justice: ‘I will do my best to ensure that the Bar’s importance is recognised at the highest levels of government.’
These four priorities, Cox says, may range from the general to the particular but reflect his main and immediate foci right now.
Theory and practice of the Attorney Generalship
I ask if there is a clash between theory and execution of the role of Attorney General. ‘There is an inelegance,’ says Cox. Since his appointment he has found that colleagues tend to listen to him more attentively because he is an elected member of the House of Commons from the Conservative Party, with a Conservative government, and so has a real understanding of the pressures that they face in the course of their political and ministerial duties. On the other hand, Cox states that ‘as a serious lawyer you cannot let your personal opinions, let alone your political opinions, obtrude into your legal judgment’. The divide between theory and execution may be inelegant but practically speaking, ‘no senior lawyer who has devoted him or herself to this great profession could conceivably abandon the values that sustained them as a practising lawyer’.
So there is no real conflict? Cox responds: ‘When you are asked your opinion on a point of law, you give it in just the same way as you would to a commercial client.’ Whilst acknowledging that there are tremendous political pressures surrounding the role at this particular time, with the negotiations to withdraw from the European Union, ‘I must say straight away to you that I have never been placed under any personal pressure to determine my judgment in a particular direction, on any point of law which I have been asked to examine.’
Cox may be clear that there is no explicit pressure but I suggest that as an actor on the political stage one can be exposed to pressure in other ways. In that context he sees ‘no difference between the pressures one experiences as a practitioner or throughout one’s career, especially when appearing in high profile cases with intense media scrutiny’. He says this has given him experience of how to deal with those pressures ‘with strong determination and resilience’. ‘Nothing will deflect or deter me from delivering the accurate diagnosis in connection with a legal problem,’ he asserts. So whilst he does feel political pressures like any member of the cabinet or government, it has no bearing at all on his duty as Attorney General.
"It’s clear that while he sees it as an enormous privilege to be Attorney General, he intends to demonstrate a ruthless independence in the exercise of his role"
Why say yes to the role at such a difficult time? Cox, who has been a barrister for 36 years and a member of the House of Commons for 13 years, says that ‘to be offered the Attorney Generalship which combines every strand of my career thus far, is the one role that could have tempted me from private practice’. He regards it as an ‘extraordinary privilege to combine what I have been doing in my professional life along with what I have been doing in my political life. It really enables one, on a much wider stage, to affect some of the things that I have seen professionally [such as disclosure]’. ‘It has brought a horizon politically that I haven’t had before,’ he adds.
In a time of enormous political uncertainty and a time of considerable legal change – the government is going through the single most dramatic, and fundamental, legal and constitutional change, in 100 years or more – it is a particularly interesting time to be Attorney General. ‘It represents an exciting challenge,’ he agrees. ‘I am at the centre of most of what the government is doing because so much of it requires legal analysis.’
I want to know what makes this energetic and towering strength of a man get up in the morning. His response is reflective and serious: ‘We are going through times when history is being made.’ Cox knows that many people will greet the question of Brexit with consternation, dismay or concern; others with a feeling of hope and expectation. It is important to be ‘able to assuage and reassure the anxieties of those who feel troubled by these extraordinary developments and steer the country through this exceptionally critical and difficult time’. This he views as a public service: ‘At any time in our history it has required people to come forward to serve the country, to serve the public interest and to navigate it through as best they can. I do feel a sense of duty in these circumstances to play my part in that, however small.’
Role of the Attorney’s legal advice in government
Are there any parallels between the role of the Attorney General’s legal advice to the government in respect of the Iraq War and that given to government now, in relation to withdrawal from the EU?
Cox does not think that an accurate parallel can be drawn between these two scenarios: ‘In the kinds of cases where in the past the Attorney’s advice might have been perceived as pivotal to a particular decision, they’ve been one-off decisions connected with the lawfulness, for example, of military action. In connection with our current departure from the European Union, the precise meaning of international treaties, the precise weight that is to be given to obligations in those treaties, the legal context to the decision that ministers, government and departmental officials are having to grapple with – at a detailed level as well as at a strategic level – are rather different in their nature from those kinds of one-off judgments that have to be made.’
Cox goes on to say that the Attorney’s legal advice still has an important role because the weighting to be given to obligations, and the precise extent and scope of them, is clearly a feature in the decision that any minister has to take. ‘But having said that, it is really important, and I have been at pains to stress this recently, that just like with any commercial client one would advise, the legal is only one aspect of the decision, it is one part or feature of the landscape. It may be prominent feature, but it is only one feature of what in the case of a commercial client is a commercial decision, and in the case of a minister, a political decision. It is really important that in giving advice, members of the Government Legal Department should be able to situate the legal advice within the political context of the decision that any particular minister has to take.’
In conclusion, Cox says: ‘It is important not to get the legal out of proportion or perspective. My role, when called upon to advise, is to ensure that first the legal judgments are fully accurate and tested, and second that they are located within the decision any minister has to take in a proportionate and careful way so they can judge the levels of significance they have to attach to the legal judgment.’
Call to the Bar to contribute to political life
Cox is troubled by the fact that the Bar used to contribute so many figures of extraordinary distinction in public and political life and no longer supplies as many – certainly there are few at senior levels of political life. We discuss how the Bar is populated with men and women of astonishing talent and ability and that once upon a time it was a reasonably easy assumption that some of them would have sought to go into public and political life. ‘That is not so much the case now and I completely understand why,’ he says, ‘but unless they do, there will be two consequences.’
‘First, the country will be deprived of some of its best talent; because for all that things have moved on, it is said that advocacy, public speaking and the ability to convey a message succinctly, relevantly and accurately have died in this age of social media. The truth is it hasn’t and the skills that the Bar has are still vitally needed in public life. So I would urge members of the profession, whatever part of the political spectrum they occupy, to give at least some consideration to engaging in some part of the political system. The consequence of them not doing so is that public life is deprived of those who have an ideal aptitude in many cases for political life.
‘Secondly, our profession becomes less well understood.’ We talk about how the importance and centrality to our constitution of an independent Bar is becoming less well understood than previous times in history. ‘I think that this has happened and it troubles me as well. That is why I have clung to the belief that I ought to continue as a Member of Parliament. It would have been quite easy for me to slip invisibly back into private practice from being a Member of the House and not have to sustain the kinds of levels of scrutiny that even backbencher members of Parliament are subject to. But I have really strongly felt that our profession needs to be represented at the most senior levels in political life. I would strongly encourage more members of the Bar to come forward.’
Following on from this theme of public service, I ask Cox for his thoughts on what qualities would stand one in good stead as an Attorney General at this time in our country’s history: ‘When you are in the eye of the storm it helps to have been through, in a mini form, similar storms before.’ He points to his experience in presenting cases in the public eye, sometimes controversial and/or at a high level, and honing the ability to be very calm and collected in order to present a reasoned argument. He points to the importance of having a clear mind so as to do justice to those you are representing. He points to the determination not to be deflected from the task at hand. All this requires experience and training, and the Bar is ‘an excellent training ground’. But most of all, says Cox, ‘you have to have a degree of bloodyminded independence’.
It’s clear, then, that while he sees it as an enormous privilege to be Attorney General, he intends to demonstrate a ruthless independence in the exercise of his role. His concern is the ‘long-term interest of the country’ even if he has to take decisions and make judgments that are unpopular with those of his own side. ‘What I do and say should be governed by the public interest rather than short-term political moves.’ Bloodyminded independence is an extremely important quality in an Attorney General, he concludes.
This interview took place on 22 November. The Attorney General’s full legal advice on the Prime Minister’s Brexit deal was published on 5 December after MPs found the government in contempt of Parliament.
Desiree Artesi is a barrister at Thomas More Chambers, a diversity champion at the Bar, and a member of Counsel’s Editorial Board.
AG Cox QC MP at a glance
- Geoffrey Cox was Called to the Bar (Middle Temple) in 1982.
- In 1992, he co-founded Thomas More Chambers, and served as its Head of Chambers.
- His practice spanned civil fraud and asset recovery, commercial, human rights, defamation, criminal and constitutional law and judicial review actions in the UK and overseas. He was Standing Counsel to the government of Mauritius.
- He was appointed a Queen’s Counsel in 2003.
- Conservative Party Member of Parliament for Torridge and West Devon since 2005.
- Cox ceased private practice as a barrister on his appointment as Attorney General in July 2018.