The attorney general talks about working with a non-lawyer Lord Chancellor, the human rights conundrum, and the ever-present threat of terrorism

Located off the central lobby in the Houses of Parliament, Jeremy Wright QC MP compares the route to his office as a metaphor for the law itself, ‘difficult to navigate through’. From here, and from the Attorney General’s Office on Victoria Street, Wright runs an immediate team of 40, one of the smallest government departments. In addition, the attorney general overseas several hundred lawyers spread out across all government departments.

‘“Oh I can’t do it because the lawyers told me I can’t.” That’s completely unfair in my view. Lawyers play a significant part in government as problem solvers and I’m keen that they are seen that way by my political colleagues, by other officials within the civil service, and by the lawyers themselves,’ replies the attorney general when asked what he hopes to achieve this year.

In July 2014, the prime minister replaced Dominic Grieve QC MP as the chief law officer of the Crown in England and Wales. It was a surprise move, as much for Wright as it was for his predecessor. ‘Yes, it was something of a surprise to me, and something of a surprise to everybody else as well. I think it’s fair to say people have got over the shock.’ 

‘Shock’ is perhaps the most apt word to describe Wright’s elevation to one of the most ancient of government posts at the tender age of 41. As the youngest attorney general since 1690, Wright accepted he would inevitably be subject to scrutiny by his peers who, before 2014, had probably never heard of him.

Wright studied at the Inns of Court School of Law and was called to the bar in 1996, specialising in criminal law, and became a non-practising member of No5 in Birmingham, one of largest chambers in the country. Wright became a Tory whip between 2007 and 2012 before later becoming a junior minister in the Ministry of Justice (MoJ) in charge of prisons. His detractors would point to a less than distinguished legal career and the perception of being a government yes-man as reasons Wright was unsuitable for the role of providing legal advice to government.

‘The longer you do this job, the more you realise that nobody has the requisite experience,’ he counters. ‘It wouldn’t matter how many decades I put in at the Bar. This job covers so many different facets of the law that nobody, however extensive their practice, is ever going to come with all the necessary experience.’ 

So if experience is not a pre-requisite for the role, then what is needed to make an effective attorney general? ‘You need to have good judgement,’ he replies. ‘And you need to be able to take good advice. Those are the things good law officers have. But they’re not always found in the oldest candidate. I’ve found it a challenge but I think everybody who has done this job has.’ 

Impartial advice

Providing impartial legal advice can be difficult at the best of times. Yet it must be even more difficult for Wright who has to juggle his roles as a leader of the Bar, a member of parliament, and the attorney general. Just how does he keep so many balls in the air at the same time without them crashing into one another?

‘No-one ever pretended this job was easy. It’s less juggling, more straddling,’ he explains. ‘You’ve got one foot in the political camp and one foot in the legal camp, and that’s not always comfortable. But, one of the huge benefits of this job is that you can understand what your client – the government – needs to achieve. You can give advice that is pitched in a way that is most likely to be understood and accepted.’ 

Commercial awareness – the principle that a lawyer needs to understand their client in order to do their best work – is a concept drilled into every aspiring lawyer and, according to Wright, also translates to the political arena. However, the attorney general is keen to stress that he never changes the advice to suit his client. ‘You give the right advice in the circumstances. 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. If the law officers are politicians, they understand their client. That enables you to give better advice, not different advice. It may be uncomfortable, but it’s an advantage.’

Wright is supported by Robert Buckland MP, the solicitor general who replaced Oliver Heald in 2014. Arguably, the door tenant at 23 Essex Street Chambers has had a more extensive legal career than his superior, having practised criminal and planning law at 30 Park Place in Cardiff before joining the newly formed Apex Chambers in Cardiff in 2007. It is also notable that neither of the law officers come with City backgrounds.

‘We come from similar backgrounds and it’s not a bad thing that what you’ve got in the law officers are people whose careers have been outside of London with recent experience of the criminal work a large part of the Bar does.’

Having any criminal practitioner at the heart of government should be a welcome development for the Bar but just how much has Wright and Buckland been able to be shape policy at the MoJ? ‘The role for Robert and I is to have whatever influence we can on the people’s policy decisions,’ he says. ‘We’re there to speak up for an independent referral advocacy profession and we do that robustly.’ 

The elephant in the room, however, is the solicitors’ profession. Solicitors by and large are already frustrated by the Bar’s influence on government – especially considering Michael Gove’s deal with the Bar over the advocates’ graduated fee scheme calculator – and are envious that Chancery Lane cannot seem to harness the same influence. Has Wright any room to manoeuvre policy on their behalf?

‘I spend a lot of time talking to the Law Society,’ Wright responds diplomatically. ‘What Robert and I take very seriously is our responsibility to represent the views of the legal professions,’ he adds, emphasising the plural. ‘That doesn’t mean we can always do what barristers and solicitors would like.’

What many lawyers would undoubtedly like is to be understood by those in high office. Unlike any of his predecessors, Wright has the perhaps unenviable experience of having worked under two non-legally qualified lord chancellors. I have to wonder if this has made his job easier or that much harder?

‘We don’t expect the secretary of state for health to be a doctor. We don’t expect the secretary of state for education to be a teacher. Why should we expect the secretary of state for justice to be a lawyer?’ he shrugs. ‘Some aspects of my role are now more evident because there isn’t a lawyer acting as Lord Chancellor. The engagement I have with the judiciary and with the professions is different because I’m the senior lawyer in government, which wasn’t always the case.’ 

Surprisingly – and perhaps despite all evidence to the contrary – the attorney general does not agree with the criticism levelled at the former justice secretary, Chris Grayling. ‘Undoubtedly he had to do some tough things. I never found him not to take his responsibilities as lord chancellor as seriously as his responsibilities as secretary of state for justice. The evidence is that both the lord chancellors have done a very diligent job attempting to fulfil their responsibilities to the legal system as well as their responsibilities to government.’

Professional pride

Yet criticism from Wright’s fellow lawyers continues. Many of those at the coal face of the criminal justice system are adamant that the government is not doing enough to preserve access to justice for all. ‘In this country, we spend a lot of time worrying about the bits of our system that don’t work quite as well as they should, and far too little time being proud of the bits that work exceptionally well,’ he comments. ‘We should be proud of the high quality lawyers we’ve got. We’re the envy of the world for this. But we can’t – I’m afraid – spend unlimited amounts of public money.’ 

The truth – as Wright sees it – is that if other areas of government have to do more with less, then the same must apply to the justice system. ‘What Chris Grayling and now Michael Gove have been seeking to do is to make sure we continue to run a high quality legal system. But we have to make sure we do that within the straitjacket of much more limited amounts of money, and that’s tough.’ 

However, the attorney general appears sympathetic to the fears of many practitioners over the future of the profession. ‘We shouldn’t lose sight of the fact that there are high-quality lawyers doing a fantastic job. Some without being paid a very large amount of money, I have never subscribed to the view that the profession is full of fat cats. It’s full of people who are hugely dedicated to the job. And they’re not doing it on huge salaries. We should celebrate that.’

Yet celebrating lawyers does not come easy for some of Wright’s political colleagues – the prime minister included – after a number of MPs recently attacked a culture of ‘ambulance chasing’ by the profession, particularly in relation to claims against the Ministry of Defence. How does Wright react when he hears members of his profession being openly lambasted during prime minister’s questions?

‘Lawyers that behave inappropriately do not represent the legal profession as a whole. It’s not my job to defend them,’ he replies. ‘What I expect, and what the prime minister expects, is for lawyers who engage in unethical and unprofessional practices to be dealt with by the Solicitors Regulation Authority. Regardless of the area they are operating in, they should be dealt with severely because they’re damaging the profession’s reputation.’

Human rights conundrum

When appointed attorney general, Wright wisely sought the counsel of Dominic Grieve. ‘Anybody in a job like this is a fool if they don’t take advantage of what their predecessors have experienced and the wisdom they can offer,’ he explains. ‘We don’t agree on everything but we agree on most and it’s helpful to have his perspective. There’s something distinct anyway about the role of a law officer, it’s a much less political job than others in government. You have the opportunity to talk to the other side of the political isle who probably came across some of the dilemmas you have.’

One of the dilemmas Grieve grappled with was in trying to convey, through his legal advice, the importance of the Human Rights Act (HRA) and the European Convention on Human Rights (ECHR) to David Cameron in a way that would allow him to keep his job. It was a battle the former attorney general ultimately lost. Is Grieve’s a cautionary tale for the present attorney general not to act against the wishes of No 10 Downing Street, or was he always seen as a safe pair of hands in Whitehall?

‘All ministers are at risk of being dismissed,’ he says. ‘In the end, the prime minister decides who he wants and for how long he wants them to do it. I don’t know why Dominic was moved on. I assume he’s got a theory, but I don’t think the job I’m here to do is any different to the job he was there to do; give the best possible legal advice so the government can act in accordance with the rule of law.’

In what could be considered a dramatic and unexpected climbdown, the justice secretary recently admitted that, despite all of the government’s manifesto promises and anti-Human Rights Act rhetoric, the fabled British Bill of Rights would be based on the ECHR and be subject to the ‘primacy of European law’ after all. Did Wright’s advice have anything to do with this?

‘First of all we have yet to see the proposals,’ he replies. ‘What we do know is that it’s not the government’s intention to leave the convention. There are people who would argue that it’s the right to leave. I have no doubt that in this area of policy, someone was always going to be disappointed by what we put forward. Let’s wait and see what comes out but I don’t think what Michael has said is in any way inconsistent with that.’

Wright admits that, over the last 18 months, a large portion of his time has been spent wrestling with the HRA and its relationship with the ECHR. However, an even greater amount of time has been taken up considering even weightier issues, such as international law and the doctrine of a nation’s right to defend itself.

Syrian advice

On 21 August 2015, two Britons, Reyaad Khan and Ruhul Amin, were killed by an RAF drone near the Syrian city of Raqqa. David Cameron told the Commons that the attack was carried out on the grounds of self defence. Appearing before the justice select committee in September 2015, Wright refused to disclose his advice concerning the legality of RAF’s attack. In the week’s that followed the Attorney General’s Office and Cabinet Office rejected a freedom of information request to disclose the advice, arguing it was in the public interest for it to remain confidential.

‘You’re always under pressure as a law officer to disclose advice,’ explains Wright. ‘There’s a very good argument for not disclosing it, and it essentially boils down to this: If you want to get the best possible advice, then the lawyers have to feel as though you’re not going to show it to the newspapers. That will change the advice. The best advice is frank legal advice.’

Wright adds that the advice given by him is only part of the consideration given by the cabinet to any particular issue. ‘The decision making process is about collective responsibility. Decision making is not best done if what everybody said on any given issue is immediately disclosed. The cabinet stands or falls together based on what they have done behind closed doors.’ 

However, it remains open to the law officer to waive that convention if they believe it’s appropriate to do so, or at least in part, as the attorney general did after the Syria attack. ‘The convention is in two parts: we don’t disclose the content of the legal advice but we also don’t disclose that we have advised on it. In the drone strike, it was appropriate for the prime minister to say that he’d sought my advice.’

One of the gravest decisions any government can make is to take its country to war. Does the experiences of previous attorneys general – such as Lord Goldsmith in providing advice for the war Iraq – weigh on Wright, knowing his advice could be used as a prelude to war?

‘There are lots of people involved in the decision to fire a missile from a drone, but you do play a part in something that will lead to the death of another human being,’ he says. ‘I don’t think anyone should take those decisions lightly. The consequences of your decision-making does weigh heavily on you and that’s quite right. I worry about the consequences of my advice even if I think it is the right decision. That’s the right human response.’

The diverse nature of the Attorney General’s Office means Wright is unable to predict what 2016 holds in store, although he is sure that international terrorism will make its way back to his in-tray before too long. ‘We’re not out of the woods yet in terms of the threat we face from Daesh, quite the reverse. There is a lot more to come. We need to be clear on the legal basis for the actions we take domestically and abroad.’ 

Questions will also be asked about the legality of any settlement the prime minister reaches in Brussels over the membership of the European Union. ‘The first questions asked will be “is this genuinely legally binding?” and “is it a lawful agreement under international law?” There will then be a referendum campaign and most of the questions won’t be legal, they will be political. 

‘If the vote is to extricate ourselves from the EU there will be a period of time during which there will be all kinds of legal challenges. But the first imminent challenge is to ask: “What does the deal that has been done really mean in terms of its legal effect?”. Those are the questions we will be working on first.’

This article first appeared in Solicitors Journal and is reproduced with kind permission.