Background to Inquiry on Role of Law Officers

The Attorney General and Solicitor General are the UK government’s principal legal advisors. Known collectively as the Law Officers, the origins of these ancient constitutional officers date back to the 13^th Century. Historically, the Law Officers were leading barristers who acted as the Crown’s personal lawyers, fiercely representing their interests in legal proceedings. As political power passed from the Crown to the Prime Minister and their Cabinet, the Law Officers eventually became salaried ministers. Appointed and removed by the Crown on the advice of the Prime Minister, Law Officers today are typically qualified lawyers with experience in practice who are also political figures; as members of one of the Houses of Parliament, a member of government, and senior member of the governing political party.

The Law Officers have a very wide range of functions. Their main role is to provide legal advice to government on the most important and sensitive legal questions of the day. On the pressing issues facing the UK government today, whether it be navigating the complex socio-economic problems and opportunities facing Britain post-Brexit, the ongoing fallout from the Russian invasion of Ukraine, political deadlock in the Northern Irish Assembly, potentially significant legislative reform of human rights protection, and the possibility of Scotland leaving the United Kingdom, it is inevitable the Prime Minister and his Cabinet will invariably turn to the Attorney General for legal advice and guidance should the need arise. Their advice takes precedence over that of any other lawyers advising the government, such as civil servant lawyers working in the Government Legal Department. They also have an important role in the legislative process, assessing the compatibility of Bills with human rights and rule of law values, and a range of public interest functions in which they act independently of government, such as referring potentially unduly lenient sentences or devolution issues for decision by the courts.

Because they are such an important cog in the UK’s constitutional machinery, the work of the Law Officers attracts a lot of scrutiny, and over the years these arrangements have faced intermittent calls for fundamental reform. During Gordon Brown’s tenure, the then Prime Minister pushed for reform, a call backed by the House of Commons Constitutional Affairs Committee, which recommended that responsibility for providing legal advice to government and superintending the prosecution services should be vested in a statutorily independent career lawyer and not a politician or member of the Government.

While these particular reform proposals were eventually dropped, appetite for change remains unabated in some circles and promoted by some prominent legal commentators and parliamentary groups. At the heart of calls for reform is the belief that the present position of the Law Officers – with dual legal and political aspects – is unwise and should be swapped in favour of a more apolitical model. Behind this conviction is an implicit deep scepticism that striking a sound balance between the different legal and political dimensions of the Law Officers’ current role is a realistic possibility in practice.

Last February, the House of Lords Constitution Committee opened an inquiry into the role of the Law Officers and Lord Chancellor in the UK constitutional order. The Committee outlined several questions that would frame its inquiry, including whether it is “appropriate or helpful for the Law Officers, as Government legal advisers, to be politicians serving in Government?” Over the course of several months, the Committee took oral and written evidence from an extensive cast of witnesses, including legal academics, former Law Officers, former Lord Chancellors, and current and former members of the judiciary.

On 18^th January 2023 the Committee published its final 89-page report, which offers a rigorous and far-reaching analysis of the role the Law Officers and Lord Chancellor play in the UK constitutional order; showing clear evidence of careful engagement with the extensive evidence provided by witnesses. On balance, it is fair to say that the report will disappoint those hoping the Committee would recommend far-reaching changes to the Law Officers.

House of Lords Constitution Committee Rejects Radical Reform

The most significant take away from the report’s treatment of the Law Officers is its rejection of the idea the dual legal-political model is “untenable” and should be replaced with a non-political model, for example where the Government’s principal legal advisor would be a technocratic appointment, made from within the senior ranks of the civil service, or from elite lawyers working in private practice (p. 5)  Instead, the Committee considered that the Law Officer’s current dual capacity as lawyers and politicians provided them with a helpful “understanding of the political context in which their legal roles take place, and bolsters their clout with ministers” (p. 5) The Committee stressed the importance of Law Officers having legal expertise and personal qualities of “mind, autonomy and strength of character” that allow them to deliver impartial legal advice to the Government, but considered that this did not require radical alterations to the status quo (p. 77).

While the Committee ruled out wide-ranging change as unnecessary, it offered the following recommendations for moderate reform:

• Amendments to the Ministerial Code and Cabinet Manual to define clearly the duties of the Law Officers, including: commitment to the existing constitutional principle of the rule of law as the Law Officers’ principal duty; definition of which of the Law Officers’ duties are ministerial in nature, and subject to collective responsibility, and which should be conducted independently of Government; and the application of the principle of parliamentary accountability to the Law Officers (pp. 67-8; 77-8)

• That the Government alter the guidelines in the Ministerial Code to provide for the disclosure of legal advice (in full or in summary) in exceptional circumstances of national importance, such as where related to the use of armed force (p. 75)

• The Law Officers’ oaths should be updated to make reference to the primacy of their duty to uphold the rule of law and fulfil public interest functions. The language used in the oath should be understood by the general public (p. 78)

Reasons to Welcome the Committee’s Report

There is much to commend in the Committee’s new report. It is very careful and well researched and offers measured responses to important questions about the role of the Law Officers. It addresses some reasonable concerns that the perception the Law Officers’ work is at risk of politicisation and suggests proportionate solutions in the form of targeted amendments to the Ministerial Code/Cabinet Manual and Law Officers’ oath. But particularly welcome is the fact that the Committee acknowledged, and gave due weight to, the very many advantages that flow from the Law Officers’ political dimension, and the report is cognisant of the many conventions, processes, and safeguards that ensure the legal and political aspects of their work are complementary and not in deep tension. These are qualities of the Law Officers that can go unappreciated, particularly in a current political climate where the designation of a public office as ‘political’ can trigger negative connotations.

In a report authored for Policy Exchange published just before the House of Lords Constitution Committee’s final report, I offered a defence of the current configuration of Law Officers on grounds similar to those the Committee endorsed. I wrote the report as I considered the merits and strengths of the status quo of the Law Officers were often undervalued, at least relative to the frequency of critiques directed its way. I argued that concerns that the Law Officers’ work is excessively politicised are misplaced or overstated. This is for several reasons. First, there are conventions that strongly deter Law Officers from allowing political concerns or pressure to taint their decisions or cause them to sign-off on government policies under flimsy legal justification. Secondly, I show that there are systems and procedures in place which help the Law Officers provide high-quality advice. For example, Law Officers regularly choose to inform their advice by consulting with a range of other government lawyers from within their Office or the Government Legal Department, or with independent external barristers with relevant expertise. Thirdly, the superintendence functions of the Law Officers over prosecutorial bodies are now subject to detailed framework agreements, which make vanishingly small the former’s ability to influence the latter’s decisions. Finally, I pointed out how on issues of exceptional national importance, governments have begun to disclose the substance of the advice, either in full or precis form; an increase in transparency that aids parliamentary debate and public scrutiny. Examples include includes advice concerning the legality of the Iraq war, use of armed force against Islamic State forces, use of armed force against Syrian government forces, the legal effects of the Northern Irish backstop contained in Prime Minister May’s doomed Withdrawal Agreement and the legality of the Internal Market Bill.

Like the Constitution Committee, I strongly agree that understanding the political background of the law is an asset to the Law Officers’ work. As the Committee acknowledges, the political background of the Law Officers better informs them about the policy goals and priorities of the government of which they are part and the pressures it may be under. It enables them to explain to colleagues more effectively why particular avenues for action must be varied if they are to be lawful, and the ability to offer politically attuned and constructive advice. The political status of the Law Officers lends weight to any advice given since it is coming from those who share the government’s goals and aspirations. Moreover, the Law Officers are currently politically accountable for their every decision, statement, and piece of advice.

One thing the Committee report does not deal with in detail is the potential costs that can accompany a model of apolitical Law Officers. Through examining other legal systems where the government’s principal legal advisors lack a similar political element (focusing on Ireland, Israel, Japan and the United States) I noted several potential costs. One is that highly technocratic and apolitical legal advisors can tend toward conservatism and caution when giving legal advice. Principal government lawyers who lack political experience might opt for a risk averse disposition which they consider best respects the rule of law and constitution, approving only those policies they feel are consistent with the ‘best view’ of the law they think a court would reach, as opposed to assessing the reasonableness or respectability of a legal position. They may also generally be less likely to approach legal analysis with the same inclination to constructively assist the government to implement its policy mandate while staying within lawful bounds, at least when compared to a lawyer whose office has dual legal-political dimensions. Indeed, given that the office holder will inevitably have his or her own policy preferences, there is the risk that undisclosed preferences may feed into obstructive legal advice. This approach to legal advice can therefore risk developing several pathologies. It might, for example, excessively legalise the policymaking process, hamstring the political branches from testing the boundaries of the law where it is uncertain, and prevent or impede good-faith dialogue between the political branches and courts about matters such as the content of the law, the extent of constitutionally permissible change, or how the law should be best interpreted.

More generally, it should not be overlooked that there are democratic accountability costs which accompany embracing a highly technocratic and apolitical model of chief legal advisors, given that it will inevitably allow unelected lawyers to wield considerable influence and power over the policymaking process. In the countries I examine, principal legal advisors wield what is tantamount to a veto over policymaking and the initiation of legislation but are, by deliberate design, largely unaccountable for their decisions.

For all these reasons, I think the substance of the Committee’s recommendations are sound. Modest reforms to the Law Officer’s oath and to the Ministerial Code should help address concerns about perceptions of politicisation but would leave the status quo – and its many merits – largely untouched. The recommendations of the Committee – whose members include a former Supreme Court Deputy President, Lord Chancellor, and Solicitor General – will no doubt spark renewed debate on the Law Officers, their proper role in the constitutional order, and whether they are well-functioning or not. I hope the Committee report and my contribution will inform this debate and convince its readers that radical change would be mistaken.

In the interests of disclosure, the author notes he gave oral evidence to the House of Lords Constitution Committee’s Inquiry on 16^th March 2022. Thanks to Richard Ekins, Michael Gordon, and Paul Scott for helpful comments.

Conor Casey, Assistant Professor at the University of Liverpool School of Law & Social Justice. In 2023 he will take up a post as Associate Professor at the University of Surrey School of Law.

(Suggested citation: C. Casey, ‘House of Lords Constitution Committee Rejects Significant Reform to UK Law Officers’, U.K. Const. L. Blog (31st January 2023) (available at https://ukconstitutionallaw.org/))