“Serving the rule of law of today”

An interview with the Attorney General, Rt Hon Geoffrey Cox QC MP

 

“THESE ARE THE TIMES THAT TRY MEN’S SOULS”

The opening words of the series of pamphlets on the American Crisis by Thomas Paine in 1776

It was all rather ironic, really!  Fighting through the massed ranks of Extinction Rebellion (XR) in the autumn of 2019 to attend an interview with the Attorney General for “The Barrister” magazine.  Those words of Thomas Paine came floated back to me as I crisscrossed Westminster to get to my destination- the office of Rt Hon Geoffrey Cox QC MP.

The journey was trying but nothing like the current political dilemma of our time leading as it has to the Christmas Brexit General Election of 12th December 2019.  Using tags already!

So, who is the current Attorney General? One Geoffrey Cox QC MP, an experienced leading counsel and known Brexiteer. From English history, the first identified holder of the office of Attorney was William de Boneville from 1277-1278. It’s almost certain there were previous professional attorneys (or equivalents) hired to represent the King’s interests in court from 1243 but they remain unrecorded.

Today’s Attorney is one of the Law Officers of the Crown with his deputy known as the Solicitor General.  The Attorney is a practising barrister and an MP who serves as the chief legal adviser to the Crown and to the Government in England and Wales. He is also the head of the English Bar presiding over our annual meeting.

We started our conversation with his role as head of the Bar. I asked about newly qualified barristers post pupillage.  “The state of the Young Bar causes me great concern”, says Geoffrey.  “I am determined to do something about fees”.  He highlighted this view to me, “I have secured the largest single settlement for the Bar than any other department”.  This comment came in response to my mention of the extra “Gauke” money announced for younger counsel during a speech by the then Lord Chancellor at the 2018 Bar Conference at the Criminal Bar. Unfortunately, there is no more money for the time being so the problems of the Young Bar will persist but better settlements are being achieved by the Attorney.

Our legal fees for public work are always a Treasury matter of course. I felt Geoffrey would push our case for extra cash very hard as head of the Bar.  It’s a position he clearly relishes and treats with great importance and respect as are his relations with the Bar Council. Sadly, the problem remains that both the type of work and the money issues present problems for new barristers just starting out as the profession changes.

The background of the current Attorney is very much that of a common law barrister from a military family.  Geoffrey has been involved in many high-profile cases in both civil and criminal jurisdictions.  To some, he was a surprise choice as Attorney in 2018, possibly because of his substantial legal practice which was unkindly over-commented on.  To others, it was a logical promotion for one so immersed in “the law” to be given the chance to face an intimidating Commons Brexit chamber rather than the quieter courtroom “which is far less noisy… generally”.

Lenient Sentences

Grossly or unduly lenient sentences have emerged as one developing issue of significance for the Attorney General’s office.  There has been considerable success in appealing low sentencing tariffs recently.  However, the role of, and appointments to, the Sentencing Council remain controversial. The main issue – who appoints these policy makers, and do we have coherent representative involvement remain unanswered? So, there were no real answers to be found here.

Another probable area for reform arose when we moved to “victim impact statements”.  Initially, I (and others) had not really favoured these statements as we are rather “old-school counsel”.  Geoffrey, however, described the statements as “a move towards giving a voice to those who would not be heard” which means that there would be “no harm in a judge understanding other views”.  He made the sale with me!

A “Dead” Parliament: What’s in a name?

Historians commonly tag certain major events with nicknames- it’s so useful for journalists!  During the times we live through such tags are not used but they tend to appear later. Such would seem to be so with the descriptions of parliaments, and certain statutes which are supplied with nicknames.  We have the “Benn Act”, sometimes emotionally called the Surrender Act… and other words which caused parliamentary outcry. At the end of this parliament, “dead” seemed to have stuck, but “surrender act” has yielded to the Benn Act.

Geoffrey described it as a “dead” Parliament on various occasions during a particularly heated session in the Commons which I watched prior to this interview- many agree with him. “It is the noise which does not come across on the television”, Geoffrey declared as the shouting is filtered by the broadcasters and we don’t hear the full horror. Colleague Sir David Liddington has described the process as “gladiatorial”. “The political danger” Geoffrey said over the challenging behaviour is the danger of “losing the respect of the public”. Another most practical observation from the bear-pit which is quite different from the courtesy of court.

We moved to a comparison of the televising of parliament with the courts, the Supreme Court, of course, established as a televised court.  Geoffrey’s view, after the latest skirmish with a hostile Commons atmosphere, was some guarded support for “limited court hearings, but not trials” to be televised although there should be “careful over the cases which would be heard” on television.

I liked Geoffrey’s approach throughout which is always practical, passing the “reality test” we use in mediation. “I have profound admiration for those doing something I cannot do”, he said, although he remains one of the giants of the contemporary Bar, and always a consistent approach towards the client, especially so if it happens to be the government.

“Taking silk, was it a risk?” I asked.  Not really as it never seemed in doubt. Silk was a progression from undergraduate law and classics studies at Downing to international outside work whilst an MP which has been so unfairly criticized by some who do not understand the need for outside experience brought to the Commons.  Such a question would never need to receive an answer for Geoffrey who, to many, is the epitome of leading counsel- great voice, sharp mind, attention to detail, and humourous in much in the way we sometimes are in the robing room.

Geoffrey concluded this section of the interview reminding us that “support for the rule of law and not the pursuit of violence is the foundation of democracy”.

Modern Advocacy- “Be Succinct, Clear and Fair”

Heather Hallett summed up the modern approach to advocacy in this way: “be succinct, clear and fair”. She explained that she appeared before a Court of Appeal judge who “I thought behaved so rudely to me that I went out and phoned the Bar Council and asked if I had to put up with it!”  For many readers, the answer is a clear “yes”- it is the same in the Commons. Times change as Geoffrey found out with a torrent of criticism for use of the standard form question counsel traditionally ask as an advocacy device – “when did you stop beating your wife?” The uproar and aftermath probably illustrate to practitioners both a change in the style of modern advocacy, and the need for better education of what we do in whilst wearing ours wigs and gowns. Geoffrey reiterated his position saying “I apologise again for any offence the comment caused.” He went on, “I believe domestic abuse to be one of the most heinous crimes afflicting our society and I did not intend to trivialize the issue.”

This led nicely to a question on public legal education (PLE), which plays “an absolutely crucial role” to cover advocacy and the “growing public lack of awareness in the way the legal system works”.  Geoffrey is very much the leading officer who serves the rule of law with the Lord Chancellor, Robert Buckland, acknowledging we have “one of the finest judiciaries in the world”.

We talked of the famous advocates, Marshall Hall and Birkett, to contemporaries such as Tony Scrivener, Gilbert Gray, and George Carman. The trick remains that advocacy “only succeeds when it focuses on the argument”, to go with much of what Heather suggests.

Explaining Judicial Precedent

There seemed little point in asking the Attorney for his view on the Supreme Court ruling on the prorogation of Parliament because the answer is obvious.  However, professional interest always lies with the earlier judgment of the Court of Appeal where the Lord Chief Justice, the Master of the Rolls and President of the Queen’s Bench backed the government. The question posed then – has the Supreme Court become political as many Tory activists suggest? And does the suggestion “dissenting judgments of today make good law tomorrow” really apply?

No direction reaction, understandably, to either suggestion that our justices are “political”, or “dissenters” even though “we do have an evolving constitution… which causes a re-examination of constitutional matters.”!  And that was as far as I could take it.

Nevertheless, the Attorney showed some concern over how judicial precedent works. It has become apparent that how our system of precedent works is largely misunderstood by the public. Reaction to Lady Hale’s judgment against Boris produced some surprising results, the favourite being a complete ignorance of the court structures and how a finding in one court can be changed by another. So, the first appeal which the government “won” was discounted and ignored once the Supreme Court ruled the other way. A great pity some may say so the Speaker’s education unit and PLE still have work to do.

I was reminded here of H L Mencken’s words – “Democracy is the theory that the common people know what they want and deserve to get it good and hard.” Thinking about the general election underway, which way will they go? The workings of parliament have come under intense scrutiny. When Geoffrey expressed the view that there is “a political danger of losing the respect of the public” over recent events, he summed up a prevailing mood. “The purpose should be to maintain the assent of the public” said Geoffrey, although events could prove otherwise at the turn of the year.

Tri-laterals

“I do hold tri-lateral meetings with both the Home Secretary and the Justice Secretary regularly” said Geoffrey – a welcome move forward as a “whole system approach” which looks to expand in the next parliament.  For years, the criticism has existed that cabinet ministers have become too territorial – probably because of the public spending reviews – so these bi-laterals and tri-laterals provide useful cross-departmental conversations to exchange information. More reality and practicality on display.

The Devon Constituency

Geoffrey first stood for office in 2000 for the Torridge and West Devon Conservatives in the constituency formed in 1983. He was elected in 2005 and has increased his majority at each election. The current 2017 majority is 20,686 on a 74% turnout placed the Labour Co-operative candidate second supplanting the Liberal Democrats with no UKIP candidate in sight. The “buzz of elation” on winning an election which one feels can be like final speeches. Yes… and no… but the adrenalin certainly does flow!

This beautiful west country constituency stretches from Lundy island in the north and Westward Ho!, to that “town of white houses”, Bideford, and down to the fringes of Dartmoor in the south presenting a rather elongated slice of western Devon for the candidates. Local issues are dominated by agriculture, food processing, defence, fishing and seasonal tourism so there is a mixture of towns and rural communities to represent.

EndNote: “To Lift A Curse”

Interviews with these important officeholders end with my standard question asking what is the most popular issue which arises in the local MP’s postbag/mail inbox.  It’s normal for the usual suspects to appear – here, it would be agriculture, lack of broadband in rural areas and specific constituency-centric controversies, and the dreaded Brexit.  Jovial Geoffrey had other ideas and he ended with a short tale of a constituent who turned up asking him “to lift a curse which has been placed on me”.

Possibly a bit stumped – what do you do with a “curse” as a politician and lawyer, especially involving Devonians – so, ever practical, Geoffrey advised said constituent to visit Geoffrey’s local vicar.  I did not get much of a response on the opinion of the vicar confronted with this request, or what happened next, but probably not a lot, but what a tale.  The role of the MP can be so varied for “these times that try men’s souls” whether it be lifting a (possibly imaginary) curse, or the hardest of current political cases: Brexit.

And during these times that try men’s souls, it was a pleasure to interview Geoffrey Cox- the barrister’s barrister as head of the English Bar since 9th July 2018 whilst we prepare for a new political landscape in 2020.

By Phillip Taylor MBE, Reviews Editor of “The Barrister”

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