Something ugly has come out of the Supreme Court’s decision to change the law and our constitution yesterday. Instead of basking magnanimously in the fact that they won, there have been wholly unwarranted calls from Remainers for ‘heads on plates’. The cry has gone out for the Attorney General, Geoffrey Cox, to publish his legal advice and to resign. The rather bizarre premise is presumably that in giving advice to the government that the prorogation was lawful, he somehow did something wrong. Let me be unequivocal – he did not, and the calls for his resignation are both vindictive and inappropriate.
How can I be so sure? Well, what the bloodthirsty are forgetting is that the High Court on 11 September thought the prorogation of parliament was legal. Up until yesterday, that was the law. Any Attorney General who gave advice with which the High Court agreed, is justified and immune from criticism.
But in this instance we can go further to vindicate this particular Attorney General. Because this was no ordinary High Court. The three judges sitting were the Lord Chief Justice, the Master of the Rolls and the President of the Queen’s Bench Division – three incredibly well respected lawyers, each with planet sized brains. More interestingly, constitutionally the Lord Chief Justice outranks each of the 11 members of the Supreme Court. It is true that the court he was sitting in, the High Court, is inferior to the Supreme Court. But it is worth reflecting that our top judge disagreed with the 11 Supreme Court judges.
It would be a world beyond parody if the Attorney General were forced to resign because he agreed in law with the Lord Chief Justice. It would tempt the definition of satire if he were to be criticised for agreeing with the Master of the Rolls – one of the original ‘enemies of the people’.
I am conscious that this entire issue is fracturing along referendum lines. But we simply can’t run the country this way – everything will break. The man who is being unfairly maligned is everything we should want in an Attorney General. Lawyers should not do things because they are popular, they should do them because they are right. Geoffrey Cox is the living embodiment of that principle. He was part of May’s government and he voted to implement the Withdrawal Agreement. When that failed, May tried to claim that a letter from the EU materially changed her deal. I remember eagerly awaiting Cox’s legal advice, which the PM agreed to publish. It is beyond reasonable doubt that he must have been under immense pressure to say that the letter altered the agreement. But he didn’t. He was not a politician saying what was needed to get the result he desired – he was a lawyer, saying what was true because it was true. The Master of the Rolls, who found with Miller on the Article 50 notification case and against Miller in the High Court this month – deserves similar praise.
When one looks at the dark and lamentable catalogue of failure that has been the government law offices since Blair ‘reformed’ everything, Geoffrey Cox stands out as one of the best we’ve had. If we perversely seek to punish him now for agreeing with the High Court then we risk giving in to a base tribalism that can only lead to national self-harm.
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