Pacta sunt servanda – an interview with Geoffrey Cox QC

Phillip Souta, the Advocate’s editor, spoke to Geoffrey Cox QC MP via video-link from his Devon constituency about honouring national agreements and what it means to be a barrister.

Geoffrey Cox QC

For this issue I interviewed The Right Honourable Geoffrey Cox QC MP (Con, Torridge and West Devon), the former Attorney General for England and Wales and Advocate General for Northern Ireland. Geoffrey Cox negotiated changes to the Northern Irish Protocol of the EU Withdrawal Agreement and left the government on 23 February 2020. He spoke to me via video from his constituency in early November 2020. What follows is a transcript of that conversation which has been edited for clarity and concision.

Phillip Souta: What was your view of the government’s decision to override parts of the Withdrawal Agreement and Northern Ireland Protocol, which you were instrumental in negotiating?

Geoffrey Cox: I didn’t agree with the government’s decision and I made it perfectly plain to the government at the highest level that I felt that it was inappropriate and wrong. The reason why I was concerned was not so much the provisions in the Bill but rather the government’s express intention to use them incompatibly with our treaty obligations. That, as far as I am aware, is unprecedented in British political history and unless the government was able effectually to dispel the impression that it would use these powers in circumstances that were in breach of our treaty obligations, I felt unable to support them.

We will have to see what happens when these provisions come back from the Lords and whether the government will continue to pursue them. If it drops the provisions, the chapter will be concluded. I don’t think it will have been helpful to the reputation of the country and I think it will have been regrettable, but at least it will then have a line drawn under it. But if they are brought back and pursued in the House of Commons, then I think it will leave me no choice but to continue to oppose them and this time actively.

PS: What is the danger of this sort of move to the UK’s standing in the international community?

GC: My colleagues – well, at least some of them – tell me that international law is a questionable concept in the sense that it is not a proper system of law. I say to them, let’s not complicate things, what it amounts to is a promise that we made. We gave a solemn and binding promise in the name of this country that we would honour this agreement and it is a question, I think, of honour as much as it is of law. The foreseeable and plain consequences of any agreement is that you are bound by it.

No British minister should enter into negotiations with his fingers crossed behind his back because the damage that this does to the trust, faith and confidence of British ministers and the British state is incalculable. That’s the first point; this is a question of keeping one’s word – of honour; of standing by one’s promises and obligations. No one doubts for one moment that a sovereign state can break a treaty, but it is not exactly a desirable reputation to gain. Particularly a treaty which has connotations of a particularly sensitive character. This is not just a trade treaty. The protocol is designed to protect the peace settlement in Northern Ireland and the Good Friday Agreement. It is a treaty that has very serious roots in the community stability in Northern Ireland. For all of those reasons, I think it is highly regrettable.

Let’s come to the fundamental principle of international law, pacta sunt servanda. It is damaging when a state like Britain, justly famous around the world for keeping its word – indeed, I would like to think after Brexit a beacon for keeping its word – does not do so. I am an unashamed and unapologetic supporter of leaving the European Union. The reason I deplore this particular move is that it tarnishes the reputation of Britain as a newly independent state. What I don’t want is that Britain should have a diminution in its standing in the world for observing its promises and agreements at a time when we are leaving the EU.

PS: There have been suggestions that the UK government didn’t realise what it was getting itself into. That has problematic implications both in terms of competence and in terms of what happens once the error is realised.

GC: Well let me put it this way. I can’t disclose advice I gave as the Attorney General to the government. But what I can tell you is that as the Attorney General to the government, nothing that the EU did came as a surprise to me.

I think that what is going on here is that those in charge of the government’s policy believed they needed to send a message to the EU negotiators – if you play hardball with us don’t expect us to be hamstrung and allow you to exploit provisions of the Protocol to gain bargaining leverage over us. If that was their intention, I understand it and I even sympathise with it because I have been face to face with Michel Barnier at the Berlaymont. But I wouldn’t have handled it that way myself because what you do is you sacrifice the moral high ground and allow your opponents to assume the injured moral virtue of a party to a broken agreement.

The Palace of Westminster, London. Photo by Naveen Annam on Pexels.com

There are other ways of sending a similar message. It is true that there were statements made in the course of the negotiations that the EU might well have had cause to regret. Recently for example, it was briefed out of the Commission that they regretted the tone that was taken at the recent EU Summit, in taking a somewhat peremptory tone to the British negotiating position. My own experience is that the EU is not this infallibly sensitive, subtle, exquisitely talented negotiating machine. On the contrary, it can be tin-eared to the sensitivities of Member States and I think that it has been so on this occasion and if indeed it made those statements which I am reliably assured that it did, it was provocative.

PS: Let me ask you about the future of English law and England and Wales as a jurisdiction post-Brexit. English law is a beacon of commercial law and English lawyers have strong and varied practices across the European continent and across the world. How can it grow post-Brexit?

GC: I have consistently argued in the government that it should get behind its legal services sector because it has one of the finest if not the finest in the world. I have no doubt that London as a centre for commercial arbitration and for the resolution of disputes generally will go on to prosper, particularly if the government looks closely at the frameworks and regimes. We have had considerable success to date but we need to look at it again and see exactly how it might be made more attractive.

We are talking about a billion-pound industry or more and that does need close and careful involvement by the government and the belief in the expansion and promotion of legal services. It is one of the great soft-power instruments that Britain has: its common law, its legal system, its language. I would argue that those inherent virtues, strengths and resources will remain after Brexit – now they will be enabled if anything to be enhanced.

These inherent resources remain beyond Brexit. The fact of our participation in the EU was not the main reason for the success of English law and the English legal system throughout the world. I don’t deny however that there was an element of that. What we have to get right I think is the future, for example, we need to see if we can sign up to the Lugano Convention. We have submitted our application, several of the member states are in favour; at the moment the EU is not. The EU is not because it is waiting to see the overall picture in terms of negotiations of the deal, but I don’t see any reason why Lugano shouldn’t be extended to us. I don’t think it would be a good look for the Commission to resist that. But of course, we can fall back on the Hague Convention and all is by no means lost if we are not part of Lugano at least to begin with. Plainly we also need to replace the Brussels Regulation.

PS: What are your reflections on the long-term impacts that Covid will have on the way that justice works, both domestically and internationally? Could the he increase in virtual hearings make English law and jurisdiction even more accessible and trigger a leap into the future?

GC: Well I think you are right about the technical revolution. I was in the City the other day watching an investment arbitration – banks of computers; everybody in different parts of the world. That’s just the way things are being done and it seems to me that that is going to be a much accelerated feature of the way we resolve things which as you say creates an opportunity for this country, even more so, to promote its services and credentials with dispute resolution at its centre.

Long term on Covid, I have to say that my real concern over this is at home more than internationally. I am deeply concerned about the backlog in the courts, in terms of criminal justice and in terms of the everyday bread and butter of the courts. My great worry is that with the economy under such severe pressure, whether we will have the resources as I think we must to invest now in the administration of justice, as I think we must, to not only bring it through the Covid darkness but also create a beacon.

PS: Do you think there is a conflict between judicial review and the proper discharge of government functions?

GC: When I was in government, my standard answer to this used to be there is no intention to remove the general day-to-day decision making of public authorities, ministers, departments from the scope of judicial review. In government there is a broad satisfaction in the way in which judicial review is functioning at the level of typical decisions by typical ministries.

The cause for concern is quantitative as well as qualitative. The quantitative concern is that so many, so various, so prolific are the challenges now to government which I saw as Attorney General – the figures are increasing year by year, the trend and trajectory is invariably up – that more and more of the bandwidth of government is being absorbed in second guessing how a judge or a court will react, given a fairly speculative judicial review.

There is a question mark over whether or not the sheer time, energy and resources that goes into it is detracting from the ability of the government to function. Now, that is a fine balance. Plainly the need for judicial scrutiny of administrative decisions is manifest, and nobody questions it. I certainly don’t, and while I can’t now answer for the government, I didn’t detect any sense of informed, real questioning of that.

Secondly, there is a question of whether the courts are moving into realms of decision making that are ultimately better off taken by those who are elected. Now, that is not altogether at the court’s fault because they are being moved in that direction by invitations from parliament and statute and so on. But again, these are such fine lines to define that they have to be treated with exquisite care.

It doesn’t help to engage in crude commentary about judges getting involved in politics. Judges in my experience strain in the opposite direction. If there is an expansiveness, and I think that there is, in judicial territory, then we need to ask ourselves why and what the solution is. I was intrigued by Lord Sumption’s Reith lectures because what he proposed, and I think I broadly agree, is that it is not so much a problem of the structures of judicial review, it is more a question of judicial culture.

One of the fundamentals, I think, is comity between the institutions that comprise it. Comity has connotations of courtesy and voluntary self-restraint. Nobody doubts that if you pushed the logic of our constitution to its extreme it would lead to absurdities.  Parliament of course is sovereign and can take ownership of the moon if it wants to. Nobody doubts for a moment that it wouldn’t do that; it can do, but it wouldn’t. The judges can go on increasing the scope of judicial review, comprising more and more areas of public and national, political and constitutional life, creating effectively a constitution out of the common law – they could do that.

Bingham warned against it; Sumption I think was also warning against it. But each institution needs to have mutual respect and voluntary self-restraint. There is a case for saying that institutional trust between the judiciary and democratic institutions has declined and the question is how you rebuild that institutional trust.

Now, it goes both ways, Members of Parliament cannot engage in language of the kind we have seen in recent years, the rubbish like “enemies of the people” and similar statements. But equally, as Sumption pointed out, there does need to be a recognition within the judiciary of the need for self-restraint – and I think that there already is in large measure – and that what we can’t have is a constitution constructed by the judges. That is undemocratic and it won’t ultimately receive assent. And there is a risk that some judges, though by no means all and not the majority, may see it as their role to expand judicial territory in that way.

PS: In response to all of that, I want to ask you about the threat of the politicisation of the judicial process. Of course, we have a Supreme Court now and language and words, as we know, matter, and you yourself demonstrated that to great effect in Parliament at the dispatch box. When people hear the phrase “Supreme Court”, they are just as likely to think of the United States as they area about the Guildhall in Parliament Square. We have just had the most controversial process almost finish in the United Statements in relation to Amy Coney Barrett. It seems that there is the possibility of moving towards a more politicised senior judiciary. What do you think about that?

GC: I wouldn’t support it. Although, I do think that if judges are going to be taking decisions in matters that are in other jurisdictions and countries, and in my contention, probably moral and political decisions, it will be inevitable that the clamour will grow for transparency in their appointments. While there are legitimate questions about the way in which Supreme Court judges are selected, to party appoint would be an unmitigated disaster.

This is an exquisitely subtle question. We have no doubt that judges respond to cases before them and judge them utterly impartially. But let me be candid. If things are moving in a direction where we see judges espousing political causes or at least causes of real topical political relevance, either in office or out of office, then I do think it will be very difficult for people like me to resist the pressure that will grow for greater transparency in appointments.

There could well be compromises. The Canadian system is worth a look. It seems to work there, and the Chief Justice of Canada has said that it is indispensable; it doesn’t divide on party lines.

PS: There are general principles of EU law like proportionality. They have become somewhat en vogue in the UK and England and Wales as tools, as heuristics, because they are quite handy in a way, but they are somewhat alien to the principles of English common law. What do you think about these sorts of legal immigrants coming into the common law?

GC: Proportionality is an interesting one. The courts have eschewed proportionality as a principle of the common law, but we get very close to it in cases where there is elevated scrutiny. It has got to be a matter for the courts to develop. Anything I have said is not intended to remove from judges the capacity to develop the law.

Brexit allows us the opportunity to see a reinvigoration of the common law. It is one of the exciting things that might come of our leaving the EU.

We need to go back to a situation where judges fundamentally recognise parliament as the senior constitutional actor but expect from parliament the proper respect and protection in return. My own view is that judges must develop this, and personally I think that the full armoury of proportionality in relation to the EU doctrine is a step too far for the review of administrative decisions in this country and I do think that Brexit allows us the opportunity to see a reinvigoration of the common law. It is one of the exciting things that might come of our leaving the EU. I wouldn’t want to fetter the creativity of the judges in that regard, provided that it is governed by the vital principle of self-restraint.

The inside of the Supreme Court, London. Photo courtesy of the UK Supreme Court.

PS: What would you advise someone entering into law apart from having a top of the line webcam and a stable internet connection.

GC:The latter is really important.

Even more than it used to be – it was the same when I came to the bar 38 years ago – you need to believe in some pretty central things to become a successful barrister. You need to believe in yourself and you need to believe with consuming passion that you want to be an advocate. Of course, it is different if you are an advisory tax lawyer say, and you don’t appear a great deal. There it is a question of temperament. You develop a very specialist skill and you prefer not to have around you this panoply of employers and human resources departments. Barristers are loners.

If you want to go to the bar you have to believe with complete and unshakeable conviction that your calling is to be an advocate. What really does trigger your sense of satisfaction and fulfilment – because by God you are going to do long hours of work, and you will pay for it in sweat and toil –  you have to believe from the bottom of your heart that this is what you’re meant to do. And if you do, and you will have to, because you will have to endure periods of the most arduous, famine, hardship, setbacks, lows, humiliations.

PS: And that is just getting to Highbury Corner Magistrates Court.

GC: The humiliation is even greater at Highbury Corner!

We’ve all been through it in our profession; it is a knock about. Whatever area you are in. Whether you inhabit the grassy and manicured lawns of EU law, or whether you come from a common law background like me, you will have to endure some really bruising knocks. The only way you can get through those when you are a loner like a barrister, is you have to believe in the value or what you’re doing, the unique nature of what you are doing.

You are being asked to find the words, the feelings, the thought process, that other people can’t find. They have to have truth. They have to be genuinely what those people would have said; the more truth they have the more compelling and persuasive they will be to the court. It is a remarkable combination of skills that advocacy needs. If you are cut out for it, there is no finer calling.

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