The job of Attorney General is fraught with tension, according to Jeremy Wright QC, who has been doing the job since July this year. On the one hand you are expected to give the Government neutral legal advice, and on the other you have to perform a ministerial role, dealing with the budgets for the Crown Prosecution Service and the Serious Fraud Office.
“And just to introduce another little tension in my job, I am a Conservative politician as well as a Government legal adviser”. “I think the role in a way has been set up to produce that tension,” he adds. He has stepped into the role at a particularly tense time. His predecessor, Dominic Grieve QC, was sacked for standing in the way of Government proposals to repeal the Human Rights Act and replace it with a Bill of Rights and Responsibilities.
Grieve is a hard act to follow. Much respected at the Bar for his fine legal brain and his commitment to his role as leader of the Bar, most lawyers regret his departure. There is also a big question mark amongst many lawyers as to who Jeremy Wright QC is. “So I know absolutely nothing about our new Attorney General, Jeremy Wright MP. Can anyone enlighten me?” tweeted criminal barrister Mukul Chawla QC recently.
Wright started out his legal life as a criminal barrister practicing at No 5 chambers in Birmingham. His website profile highlights his experience in “high value frauds and cases involving a video link”. He did not come from a family of lawyers, but as a teenager he discovered a passion for advocacy and speaking up for others. He believes that the experience of having been a criminal barrister has been useful as it has given him the ability to “synthesise quickly information that you need in order to represent someone effectively, and as a constituency MP that’s what you do a lot of”.
He progressed to Parliamentary Under Secretary at the Ministry of Justice in 2012. He was made QC as a result of becoming Attorney General in July. So, how does Wright’s experience of being a criminal barrister qualify him to advise on complex international issues? Wright acknowledges his lack of experience in international law. But for him this is not a problem. “It doesn’t matter how eminent you are as a lawyer. When you arrive at this job, you will never know it all. And I think what’s important is that you have the humility to understand that, and recognise the need to take advice.”
Wright recently advised the Tory party that their current plans to do away with the Human Rights Act were “fine, viable and legal”. The plans, entitled “Protecting Human Rights in the UK,” were recently published by the Lord Chancellor, Chris Grayling MP. Apart from tearing up the Human Rights Act, proposals include preventing domestic courts from imposing decisions of the European Court of Human Rights (ECtHR) that are politically unpalatable”(such as the unlawfulness of whole-life sentences without review). As the Lord Chancellor has stated: “Effectively what we are doing is turning Strasbourg into an advisory body.”
Critics of the Tory proposals point out that the Human Rights Act only obliges domestic courts to taken into account any judgment, decision, declaration or advisory opinion of the ECtHR, which gives them a broad discretion as to how those decisions are interpreted. As Lord Neuberger has stated “this court is not bound to follow every decision of the European Court. Not only would it be impractical to do so: it would sometimes be inappropriate, as it would destroy the ability of the court to engage in constructive dialogue with the European court which is of value to the development of the Convention.”
Wright, however, is not convinced. “We’ve had a number of judgments on a number of subjects that have caused considerable political disquiet,” he says. Asked about the view that the Human Rights Act has brought about positive change, such as enabling victims of crime to ensure their perpetrators are brought to justice, he said “there are plenty of other mechanisms that we could make use of for these things to happen”.
Whilst he agrees with Lord Neuberger about the need for dialogue with the Strasbourg Court, he is clear that “it should be our courts that should have the final say”.
The Tory plans intend for the UK to remain signed up to the European Convention on Human Rights (ECHR). However, under Art 46(1) of the ECHR, the UK has undertaken to abide by the final judgment of the Strasbourg Court in any case they are parties. The Tory plans would therefore create an incongruous situation where domestic courts would be obliged to reach decisions that would be found to be in breach of the ECHR itself. So it is hard to see how any government could incorporate the Tory plans without withdrawing from the Convention altogether.
“What’s being proposed is that we seek to get a different arrangement from the Council of Europe,” says Wright. This would mean the European Court being reduced to an advisory body. He doesn’t have a problem with the ECHR document itself, but with the way in which the Strasbourg Court has interpreted human rights over the last few years.
“What I think is crucial here is that at no point in the proposals that are being made should we end up in contravention of our international legal responsibilities,” he adds. Dominic Grieve QC has told the Guardian that the Tory proposals were “almost puerile” and “full of howlers”, and believes that they are “unworkable and will damage the UK’s international reputation”.
He also said that “the suggestion that they can be negotiated with the Council of Europe so that the UK has its own space where it can [take what it wants] while everyone else complies is almost laughable”.
“I have huge amounts of respect for Dominic as a lawyer and as a politician, but we don’t necessarily agree on everything,” says Wright, who compares the UK membership of the ECHR with that of a club.
“If you don’t like [the club’s] rules, you have a choice. You can either seek to get the rules changed at the next AGM or you leave the club.”
To many critics, the Tories’ willingness to terminate the UK’s membership to the ECHR is an overreaction, given that so few cases brought against the UK government result in findings against them. (Of the 2,082 applications made against the UK in Strasbourg in 2012, 2,047 were declared inadmissible or struck out, 14 resulted in no adverse findings, leaving just ten cases where a Convention right was breached).
But for Wright, any case where the UK is found in breach is one case too many.
“Take for example prisoner voting” (where the ECtHR found that the UK’s blanket ban on prisoner voting was unlawful). “That is a very substantial issue of sovereignty,” says Wright. In his view, “membership of the ECHR doesn’t have any particular magic to it.” Nor is membership “synonymous and indivisible from a commitment to human rights”. Critics of the Tory plans have suggested that by leaving the ECHR, the UK would be joining North Korea and Venezuela, the only other two countries to have abandoned their commitments under human rights treaties. But it is not a comparison Wright accepts. “I don’t think we would be joining that category,” he says.
“If we get to a point where we thought it was appropriate for us to leave the Convention, I do not believe it follows that routinely human rights would be abused in this country.” In spite of his opposition to the European Court in Strasbourg, Wright believes that politicians should be subject to judicial review and the rule of law. However, the relationship between the judiciary and government has become increasingly politicised, which was highlighted last year when the Home Secretary, Theresa May, criticised judges for ignoring immigration rules. Wright believes there has always been a tension between the judiciary and government, and that this tension is a positive aspect of the constitution. He goes on to say, “I don’t think it is sensible for politicians to criticise judgments where they haven’t heard all the evidence.”
He believes it is important that both the legal profession and the judiciary are represented around the Cabinet table. However there is widespread concern throughout the legal profession that the current representative of the judiciary, Chris Grayling, is not a lawyer. He is the first Lord Chancellor not to be a lawyer for at least 440 years, and was recently criticised by Lord Falconer (himself a former Lord Chancellor) for failing to understand the importance of his role in upholding the rule of law. Wright doesn’t believe Grayling’s lack of a legal background is a concern. “I don’t think we ask the Secretary of State for health to be a doctor and we don’t ask the Secretary of State of education necessarily to be a teacher. I think the current incumbent is doing the job well.”
Wright intends to follow Grieve’s footsteps in being pro-active in his role as leader of the Bar. Grieve went out of his way to attend every Bar Council meeting. “I will attend Bar Council meetings whenever I can,” says Wright. He says he takes this part of his job extremely seriously. “I think actually what the Bar really needs is good friends in government.”
He is concerned that not everyone believes there is still a need for an independent referral advocacy profession and the second opinion that the Bar provides. “Part of my role I think is to make a strong argument for the Bar,” he said. “I believe strongly that the Bar has a good future, should have a good future, because it adds considerably in my view to the legal system that we’re all so proud of.”
However, he believes that in order to maintain public confidence, the Bar should maintain high standards by adhering to the standards set by the Bar Standards Board. “And that’s not just standards of behaviour, it’s standards of advocacy too incidentally. Because otherwise it’s very much harder to make that strong argument for the Bar that I believe can and should be made.”
Like Grieve, he is prepared to make representations to the government on behalf of the Bar about cuts in legal aid. However, he thinks “some of these representations are best made privately not publicly.”