The Attorney General and Contempt of Court – Some political and constitutional questions

In recent years, a number of UK politicians have made statements, through traditional or new media, that may have amounted to a contempt of court. That is, they potentially created ‘a substantial risk that the course of justice … will be seriously impeded or prejudiced’, as per the Contempt of Court Act 1981. Such statements are problematic because of the central role given by the 1981 Act to the Attorney General to bring or consent to contempt of court proceedings. In brief, any decisions by the Attorney General about whether to bring or consent to contempt proceedings against political allies or opponents may appear to be biased.
In this paper, we will give examples of statements by politicians, including David Cameron, when Prime Minister, and other Ministers, which had the potential to amount to a contempt of court. Some of these were so serious that they resulted in a judicial rebuke. We will argue that the tendency of politicians to make such statements is likely to increase given the recent success of populist politicians and the greater use of social media. We will next detail the Attorney General’s role in bringing or consenting to contempt of court proceedings with respect to such statements. We will consider the legitimacy of his role in contempt cases concerning politicians and consider possible alternatives.
The issues raised in this paper include questions about the rule of law, and the requirement that those in power must act lawfully and be subject to the courts when they do not; questions about the separation of powers and the Law Officers’ role; and questions about the relationship between Government and media. These are central – and, indeed, fundamental – questions about law and about the law’s capacity to govern the behaviour of those in power.