Geoffrey Cox QC rallies to defend himself — and the need for legal professional privilege in ‘exquisitely sensitive’ circumstances
Geoffrey Cox QC argued before the House of Commons’ Justice Select Committee today that attorneys general are not conflicted in their dual political-legal role: “It would never occur to me, to anyone, to compromise one’s legal judgement on political lines. I have given my view absolutely down the line on legal matters.”
Cox, whose legal advice on the proposed EU withdrawal bill landed the government in hot water in December of last year for only reluctantly being published in summary form, was on the defensive as he gave evidence on the role of the Attorney General (AG) at the committee session chaired by Bob Neill MP.
At the centre of the inquiry by the Justice Committee was the problem that the AG role involves wearing two hats: he has a legal role as chief legal advisor to the government but he also has a political one in that he has ministerial/departmental responsibility and sits in cabinet.
This conflict has come under scrutiny since the furore over the government’s refusal to publish the advice that Cox had given to it in relation to the draft EU Withdrawal Bill. In a two-and-a-half-hour speech, on Tuesday 4 December, Cox defended the government’s position on not publishing the full advice on the Brexit Bill.
He then came back to parliament the following day to defend the government on whether or not it was in contempt of parliament for refusing to publish the advice. He lost both arguments and the government was found in contempt and the legal advice was published in full.
Probing the issue of what happens when there is such a matter of “national significance”, David Hanson MP asked Cox at the session about this conflict. Cox defended his own record:
“If I am advising anybody, whether the House [of Commons] or cabinet I would be no lawyer at all if I allowed my private or political view to obtrude my legal judgement.”
This is not the first time that there has been concern over the dual aspects of the role. Following the debacle back in 2005 over publication of the legal advice on whether the war in Iraq was legal, written by the then AG, Lord Goldsmith (now at Debevoise & Plimpton), there was a very similar inquiry by the constitutional affairs committee into the potentially conflicting roles a couple of years later, in 2007.
Today, Cox also gave evidence on the ever-important issue of whether or not legal advice given to government should be covered by legal professional privilege. “I do believe that the law officer convention is a crucial constitutional principle; it is vital. And the more complex, controversial and sensitive the issue the more vital the convention.” He continued:
“The more exquisitely sensitive and controversial [the issues] are, it is even more important that his advice should be candid and frank, and targeted to what he knows are the issues with which his colleagues [the government] are struggling… It is targeted advice to the needs of the moment. That particularly targeted advice upon the need of the moment will sometimes be given in a manner, because it is designed for that moment, that at another time, when there are different priorities and different understandings, he might have expressed himself differently.”
