Why Suella Braverman must go

Last Saturday, immediately after the Dominic Cummings story broke, and in a carefully choreographed social media campaign, a number of senior ministers took to Twitter to echo the Prime Minister’s support for his adviser. They quoted the official No 10 statement that set out Cummings’ version of events and concluded that “Mr Cummings believes he behaved reasonably and legally”. Some added their own personal message of approbation. Among them was the Attorney General, Suella Braverman, who tweeted: “Protecting one’s family is what any good parent does. The @10DowningStreet statement clarifies the situation and it is wholly inappropriate to politicise it.”

The response from legal commentators and practitioners was immediate and coruscating. To understand the outrage that she has provoked, one has to understand the Attorney General’s role and the unique position that she holds as chief legal adviser to the Crown and to the government. As Philippe Sands QC, Professor of Law at UCL, eloquently put it, the Attorney General is “the adviser to the Prime Minister on matters of law and therefore needs to be absolutely scrupulous to maintain an independent position on legal matters. The absolute integrity of an attorney general is the prerequisite for a functioning democracy.” She also has a number of other independent public interest responsibilities including, crucially, the overseeing of the Crown Prosecution Service.

In that context, her actions were staggeringly ill-advised. Even on his own account, the actions of Cummings raised, at the very least, the possibility that he had broken the law, that the police had already been – or would now become – involved, and that the CPS would determine that he should be prosecuted. And yet, immediately, and without having undertaken the most basic of independent enquiries of her own into the matter, the Attorney General – the independent legal adviser to the Crown and superintendent of the CPS – publicly and unreservedly exonerated Cummings of any wrongdoing. How were the police or the CPS now expected independently to investigate the matter when the Attorney General herself had already said that no offence had been committed? Believe me when I say that I am pulling my punches when I describe her actions not only as unconstitutional but also as grotesquely irresponsible.

It was no surprise that the Shadow Attorney General, Lord Falconer QC, wrote to Braverman on Sunday with a damning indictment:

“Your tweet appears to side with Mr Cummings in the dispute with the police. It implies you are not supportive of the steps they took.  Moreover, your tweet is supportive of a statement from No 10 which disputes the handling of the case by the police. The prime minister should not be lending his authority to attacks on the enforcement of the criminal law. He should certainly not be egged on in that by the attorney general. As attorney general you have a special constitutional responsibility for the appropriate enforcement of the criminal law and are responsible for oversight of criminal prosecutions. It is a rigid constitutional principle that the attorney general will discharge those functions free from political considerations or influence. It looks clear that your tweet was part of politically orchestrated campaign in support of Mr Cummings and you have breached that rigid principle.”

How did she respond? Did she reflect on her actions, remind herself of the fundamental duties and responsibilities of her unique and ancient office, recognise the utterly invidious position in which she had placed those charged with enforcing the law and apologise unreservedly? No, she did not. Instead, she replied to Lord Falconer, and by inference to all those appalled by her actions, in these terms:

“There is of course no question of my having offered any public legal view… nor of seeking to pre-empt any formal investigation. The purposes of my comments as I think would be obvious to any fair minded observer, was simply to support the decision to clarify events. You will understand that I propose to make no further comment.”

Lord Falconer described that response as “disingenuous”. Strong as that term is for one lawyer to use about another, I would go even further. Any ‘fair-minded observer’ of her tweet would, in fact, have concluded three things: firstly, that she accepted and endorsed Cummings’ version of the facts; secondly, that his actions were entirely justified (“protecting one’s family is what any good parent does”); thirdly, that no further investigation was required (“The @10DowningStreet statement clarifies the situation and it is wholly inappropriate to politicise it”). The suggestion that all she was seeking to do was “to support the decision to clarify events” not only insults our collective intelligence – it demeans the dignity of her office.

In a previous article for LabourList, I suggested that Suella Braverman’s surprise appointment as Attorney General, given her relative lack of experience both at the Bar and in politics, had been driven by a recognition by No 10 that she would not, as the office demands, speak truth unto power or provide informed and above all independent counsel to the government. Rather, they saw in her a malleable and compliant career politician. I confess that at the time I agonised about so publicly doubting her ability and her character: the Bar is my life and the Attorney General is at least notionally the leader of the Bar and, indeed, to hold that office should be the pinnacle of ambition for any lawyer with a sense of political purpose and public service. It gives me no pleasure to conclude that my concerns were well-founded.

Suella Braverman’s tweet was an appalling error of judgment but her position was not irretrievable. She could, as any Attorney General worth the name would have done, have issued a sincere and unreserved apology. She could have made it clear that she was reserving judgment herself until any ongoing police investigation had been concluded, as her role as overseer of the CPS demanded. She chose to do none of those things. In the meantime, the Durham Police have concluded that, contrary to the snap judgment of the Attorney General, Cummings might well have broken the law. Her position is untenable. She must go.