Friday, 8 March 2019

Questions to Law Officers 7 March 2019

Geoffrey Cox QC MP
The Law Officers for England and Wales are the Attorney General and the Solicitor General.  On Thursday 7 March they answered questions from MPs.  These exchanges may be read in Hansard:

The office of Attorney General can be traced back to the 13th century - List of Attorneys General.  The Attorney General is the principal legal adviser of the Crown and its government in England and Wales.  The office of Solicitor General also has a considerable legal history and is traceable back to at least the 15th century - List of Solicitors General.

The Attorney General has a demanding role and, usually, the duties are performed in the background of government.  Duties include superintendence of the Crown Prosecution Service, the Serious Fraud Office, and other government lawyers with the authority to prosecute cases.  Additionally, the Attorney General superintends the Government Legal Department,  HM Crown Prosecution Service Inspectorate and the Service Prosecuting Authority. The Attorney advises the government, individual government departments and individual government ministers on legal matters, answering questions in Parliament and bringing "unduly lenient" sentences and points of law to the Court of Appeal of England and Wales. Since the passing of the Law Officers Act 1997 duties can be delegated to the Solicitor General, and any actions are treated as if they came from the Attorney General.

The Attorney General also has various duties in connection with litigation including contempt of court matters.  The present Attorney General - Mr Geoffrey Cox QC MP - has just decided that further proceedings for contempt of court will be brought against Mr Stephen Yaxley-Lennon (aka as Tommy Robinson) - BBC News 7 March 2019.   The Previous finding of contempt was quashed by the Court of Appeal and a retrial ordered before a different judge.  The Court of Appeal judgment is HERE.  The new hearing came before the Recorder of London but the Recorder then referred the matter to the Attorney General - previous post 22 October 2018 and see The Guardian 23 October 2018.

The 7 March questions to the Law Officers revealed a number of interesting points.


Hansard reports  that Mr Bambos Charalambous MP asked the Solicitor General -  What recent discussions he has had with Cabinet colleagues on the adequacy of the level of CPS resources to comply with its disclosure obligations.   The SG replied - I have frequent conversations with ministerial colleagues about this issue and all issues relating to the criminal justice system. In November last year, the Attorney General published his review of disclosure, which examined the efficiency and effectiveness of the current system.

See The Review of the Efficiency and Effectiveness of Disclosure in the Criminal Justice System and also the response of the Bar Council.

EU Withdrawal Agreement: Northern Ireland

In the last few weeks, the Attorney General has been personally engaged in discussions with the European Union regarding the backstop contained in the Withdrawal Agreement.  The UK government is trying to obtain a legally binding commitment that the backstop - should it be required - would not be a permanent arrangement.

In the debate Helen Goodman MP asked - " ... is it still Government policy to seek a reopening of the withdrawal agreement?"  Mr Cox replied - "It is Government policy to achieve the necessary change in the backstop that will cause me to review and change my advice. That is Government policy; that is the subject of the discussions that we are having. I would say that it has come to be called “Cox’s codpiece”. What I am concerned to ensure is that what is inside the codpiece is in full working order."

It is far from clear just what legal cover (if any) for the backstop will be achievable.  Mr Cox said that discussions would "resume very shortly and continue almost certainly through the weekend. We will endeavour to give the House notice as early as we can, if and when we have something to report."

Hansard reports that Mr Mark Francois MP asked - 

The Attorney General is now in the interesting position of leading on these negotiations, which means that—to follow his nomenclature—he will end up examining his own codpiece in front of the House of Commons. How can he provide the objective advice to the House on which we rely when he will, in effect, be marking his own homework?
The Attorney replied - 

The law is the law. The question of whether whatever is negotiated with the European Union affects the legal risk of the indefinite duration of the backstop is a matter that I shall judge entirely impartially and objectively. If I did not, I would be conscious that there are many lawyers—

In a further reply to a question from Mr Nick Thomas-Symonds MP, the Attorney committed himself to publishing his legal opinion on any document that is produced and negotiated with the Union.


Hansard reports that Mr Philip Hollobone MP asked the SG - What information his Department holds on the most recent prosecution for treason.

One might think this to be a rather odd question since Treason prosecutions have not been brought since World War 2 but the question clearly related to British citizens who have gone to fight for Daesh (ISIS).

The SG replied - The most recent prosecution for what is sometimes known as high treason was that of William Joyce, also known as Lord Haw-Haw, in 1946. Treason remains an offence that can be prosecuted. However, its provisions are somewhat archaic. Modern criminal and terrorism offences are more likely to be applicable and provide sufficient sentencing power, and usually offer a better chance of a successful conviction.

Mr Hollobone then asked - Will the Solicitor General strongly encourage the Law Commission to revise its 2008 guidance that the Treason Act 1351 has ceased to be of contemporary relevance, so that the law may be applied to British nationals who betray our country by going abroad to join a jihad against Her Majesty’s armed forces?

The SG responded - My hon. Friend is right to remind us that the 1351 Act is very much on the statute book. The question of who the sovereign’s enemies are is perhaps easily answered when we have clearly defined state actors who are clearly acting against the interests of our country. It is somewhat more difficult when it comes to returning foreign fighters, but I assure him that when people come back to this country who have committed atrocities abroad and where there is evidence, we will prosecute them.

I think it clear enough that the latter remark did NOT mean prosecutions for treason but for one or more of the modern criminal and terrorism offences to which the SG had referred.

The present law of treason is certainly "somewhat archaic."  It is a disgrace to our jurisprudence and it ought to be either removed altogether and modern offences preferred or, if abolition does not meet with acceptance, then the law ought to be placed on a modern footing.

Previous post - TREASON 10 June 2012  and the Law Commission Working Paper No. 72 - Treason, Sedition and Allied Offences (1977).  In 2008 the Law Commission published its 10th Programme of Law Reform and, in relation to treason commented:


The role of the Law Officers - 2012 Speech by Oliver Heald QC MP

Research Briefing 2014 - The Law Officers

No comments:

Post a Comment