Government lawyers: Without fear or favour
The Chilcot report and Michael Gove's fall from grace could have lasting implications for British justice, writes John van der Luit-Drummond
Who would want to be a government legal adviser? The long-awaited report from Sir John Chilcot into the Iraq war has highlighted the importance of consideration given (or not) by the executive to independent legal advice prior to the taking of military action against another sovereign nation.
Though the legality of the invasion was not within the remit of the inquiry, chapter 5 of the 12-volume, 2.4 million-word report - far longer than War and Peace, the complete works of Shakespeare, the Bible, and the Solicitors Regulation Authority's total consultations for 2015/16 combined - found there was 'little appetite' within the cabinet to question Lord Goldsmith's formal legal advice, even though the then attorney general's 'preferred view' had changed.
Following Goldsmith's advice, Elizabeth Wilmshurst resigned from her position as deputy legal adviser to the Foreign Office, arguing that the use of force against Iraq without a second Security Council resolution was unlawful. Writing in the Guardian this week, Wilmshurst said that the rule of law requires lawyers to be 'capable of giving assertive, consistent, and confident legal advice - and ministers who follow that advice'.
Government lawyers - whether they be within a specific department, or hold the higher offices of attorney and solicitor generals - will always run the risk of being ignored and/or pushed into tailoring advice for their client. However, as the present attorney general, Jeremy Wright QC, told me earlier this year (SJ 160/06): 'It is not the law officer's job to tell the prime minister what he wants to hear. It's his job to tell him what he needs to know.'
The decisions of the past should be a lesson for current Whitehall lawyers who will soon, if not already, be wrestling with the consequences of the Brexit vote. Who knows, maybe an inquiry some seven years from now will find their advice on exiting the EU wanting. Of course, who they provide their advice to is yet to be decided, with the Conservative leadership election pitting the home secretary, Theresa May, up against energy minister Andrea Leadsom in the race for Downing Street.
Not in line to become our next prime minister, however, is the secretary of state for justice, Michael Gove, who was knocked out of the running in the last round of voting by his parliamentary colleagues. It is ironic that Gove, who has done much to promote the rehabilitation and redemption of offenders, should have his dreams of higher office scuppered by his fellow MPs. It seems that for the Tories betrayal is not a crime to be easily forgiven.
So, Gove will remain our Lord Chancellor, but for just how long? It is unlikely the high-profile Brexiter will retain his position come the new premier's first cabinet reshuffle. If he is lucky, Gove may find himself a part of the Brexit negotiations team; if unlucky, he will be relegated to the backbenches, far from the power he so recently sought.
While schadenfreude might seduce some into laughing at his fall from grace, a cabinet brooming of Gove creates the possibility of a new, less 'principled' politician as justice secretary. Looking at the present justice team we may see one of the following filling that void: Dominic Raab, who this week claimed tribunal fees had had 'the right kind of behavioural change' on employment claims; Shailesh Vara, who appears quite content with placing a cost on justice via the government's repeated court fee hikes; or Andrew Selous, who has been accused of allowing his personal beliefs to influence his role as prisons minister.
Worse yet, could we see a return of 'failing Grayling' to finish his destruction of the justice system? The choice of justice secretary may have been far from the minds of those voting for Brexit, but the consequences of that vote for justice policy may be felt for years to come.