More attention has been paid in recent years to the important role government lawyers play in many constitutional systems, and the Janus-faced impact they have on executive authority. On the one hand, it has been pointed out that government lawyers act as a critical source of executive empowerment – by assisting officials as they assert and deploy power through recognized constitutional channels and legal forms, defending executive positions in court, advising on the scope and limits of its existing authority, and providing legalistic credibility for its actions. Conversely, even if they do not set out to be obstructive in any respect, to the extent that government lawyers faithfully adhere to their professional obligation to advise honestly and candidly about what the law reasonably requires or permits, they will inevitably serve as some kind of internal constraint on executive power.

When it comes to studying the nature and impact of government lawyering in the UK, the Law Officers have received particular focus, but attention has also been devoted to studying actors like the Government Legal Department, the Legal Directorate to the Foreign and Commonwealth Office, and the Office of Parliamentary Counsel.

In this post, I offer an introduction to one of the lesser discussed, but critically important, positions in the firmament of government lawyering: the First Treasury Counsel (‘FTC’) who assist the government on matters of civil law.

History of the Position

The position of FTC has a long historical pedigree. The earliest reference I could find to the post (with the caveat that I am not a legal historian) was the appointment of Sir John Eardley Wilmot (1709-1792) as Treasury Devil by Attorney General Sir Dudley Ryder (1691-1756). While no precise date is given for the date of appointment, it would have occurred sometime during Sir Dudley’s tenure, between 1737-1754.

In 1833, the Quarterly Journal of Jurisprudence (published from 1828-1915) pithily described FTC as a “sub” to the Law Officers, a barrister briefed to help the Attorney and Solicitor General shoulder their perennially crushing advisory and litigation workload. In 1892, the US-based legal periodical the Green Bag referred to the FTC as “the junior counsel to the government” that is “briefed in all heavy Crown cases” and “enjoys, besides, a lucrative private practice… a reversionary right to puisne judgeship, without being expected either to take part in politics or to become a Queen’s Counsel.” 

Lord Woolf says in his memoir An Uncommon Lawyer that so far as he understood it, the rationale for rapidly appointing FTC to the bench upon concluding their time in post was linked to the unrivaled volume of confidential and sensitive governmental information they became privy to in their role. A swift elevation to the bench would mean that there would be no risk that a former FTC might, consciously or otherwise, rely on this information to the benefit of future private clients.

The fact FTC are in constitutional terms led by, and junior to, the Law Officers when acting for the government is where their unofficial title of “Treasury Devil” comes from. Although the current FTC, Sir James Eadie, was a King’s Counsel upon appointment, he is still frequently referred to by this sobriquet. The term “devilling” is a legal colloquialism for the practice where a junior lawyer does research and work for a more senior counsel while learning the ropes of the profession. Indeed, in some common law jurisdictions “devilling” remains a mandatory part of the process of becoming a barrister.

The reference to “Treasury” in the title of the post will be understandably obscure to many. As with the Treasury Solicitor, the title recalls a time when the term “Treasury” was more or less a shorthand for the government of the day and its administration. To this day, for example, the front bench on which members of government sit in the House of Commons is known as the “Treasury bench”. The post could therefore be more accurately referred to as “First Junior Counsel to the Government” if the incumbent is a junior counsel, or “Senior Counsel to the Government” if they are a silk. The First Counsel to the Government is, of course, the Attorney General.  

There have generally always been two FTC, one to handle common law matters and the other chancery affairs. Over time, however, the type of work done by the Common Law and Chancery FTC has become much less divided along the lines their titles would suggest. Today the type of work both do is more or less identical and generally focused on public law issues. While both are briefed on important public law cases, there is an understanding within government that the FTC (Common Law) enjoys primus inter partes status and should be briefed in the most important cases. There is currently no FTC (Chancery) in post.

Until quite recently, the appointment of FTC was entirely within the discretion of the Attorney General, and often the person appointed would enjoy a personal relationship with them. The process for appointment was also entirely opaque. The late Sir John Laws, who occupied the post from 1984-1992, said that he had “never heard of anyone applying for the job”. Rather, the process seemed to be that the chosen person would receive the proverbial “tap on the shoulder”. Since 1997, following high profile complaints about the opacity of the process, appointments to the post are now subject to an open competition. The Attorney General has the power to terminate an appointment “if he considers that the interests of the public service so require”, but there are no recorded instances of a post holder being so discharged.

Traditionally, the posts were held for a period of five years by experienced junior counsel who had not yet taken silk.

The Position Today

The last century has seen several changes to the nature of the post. Amongst the biggest changes concerns the right to engage in private practice. By the late twentieth century, largely owing to the growth of the grounds of judicial review and the impact of European law, the workload of FTC became so heavy that it was impossible to combine it with taking on additional private work. Since 1968, therefore, FTC have exclusively taken on government briefs while in the role. The fact they do not take any other clients other than the government means they are exempted (by custom and not any formal rule, it must be said) from the bar’s cab rank rule.

Another significant change is that, because the two FTC could not possibly handle all the serious litigation concerning the government, the majority of advocacy on behalf of the government is handled by Junior Counsel to the Crown drawn from panels of barristers known as the Attorney General’s panels. The panel system was inaugurated during Lord Woolf’s time as FTC (1974-1979), and organized into its current three tier A, B, C structure in 1999 by the Solicitor General Sir Ross Cranston.

A third change is that it is now considered acceptable for a silk to occupy the role of FTC. Both Sir Philip Sales (now Lord Sales) and Sir Jonathan Swift retained their respective roles as FTC (Common Law), and FTC (Chancery), after their appointment as Queen’s Counsel. Lord Sales’ successor, Sir James Eadie KC, was already a silk upon his appointment as FTC.

Contemporary FTC have also tended to hold the position for longer periods. The most recent FTC (Chancery) – Sir Jonathan Swift and Mr Jonathan Crow CVO – held the post for seven and eight years respectively. On the Common Law side, Lord Sales occupied his post for eleven years, while his successor Sir James Eadie KC has been in post for sixteen years, the longest tenure in the office’s history.

Finally, given that judicial appointments are now subject to an open and highly regulated competitive process, it is no longer the case that FTC enjoy an “expectation” of judicial appointment on concluding their tenure. That said, recent FTC like Lord Sales and Sir Jonathan Swift have been appointed to senior judicial positions.

The core legal functions of FTC, however, remain largely unchanged from the eighteenth century. In the words of a recent Attorney General, the core of the post remains to act as a “senior self-employed advocate” that “undertakes civil litigation and advisory work for all Government departments.”  The post is both highly prestigious and highly demanding. It is widely acknowledged to involve a relentless level of sensitive, important, and therefore stressful, work; including attending to a never-ending stream of requests for advisory and advocacy assistance on a wide range of legal issues relevant to government, particularly in the domain of public law and human rights law.

Those appointed FTC will invariably be rising stars of the bar, able to combine high quality advocacy and advisory abilities, a ferocious work ethic, and the ability to adapt quickly and gain fluency in the kinds of legal issues facing the government. Many of those who have served as FTC are now considered amongst the most prominent public lawyers of their time, including Lord Sales, Lord Woolf, Sir John Laws, Sir Gordon Slynn, and Sir Jonathan Swift. 

Law Officers today devote much less time than their predecessors to their role as first counsel to the Crown. Although they occasionally appear in person for major cases (Lord Goldsmith, in particular, appeared in many high-profile cases during his tenure) this has become increasingly rare. The gap left by the Law Officers’ non-attendance in court has been filled in large part by FTC, who are recognised as the “Government’s main advocate in civil litigation affecting the Crown.”

FTC will usually appear with other more junior counsel who can provide assistance in drafting pleadings, writing submissions, and preparing for oral argument. Indeed, given their onerous advisory responsibilities, FTC cannot be physically present in court every day in the same way their predecessors might have been. As already mentioned, this means that the great run of litigation involving the government will be dealt with by Junior Counsel to the Crown drawn from the Attorney General’s panels.

Role in Government Litigation

FTC occupy a unique position in the practice of UK public law. In the course of their tenure, FTC will end up representing the full range of government departments and agencies. This gives them an unrivaled synoptic view of how different cases, developments, and legal issues might impact different departments and their priorities, as well as the government as a whole. In many cases, FTC will not only liaise and strategize with officials in the department they are immediately representing, but officials from several departments whose policy priorities could also be impacted by the litigation at hand.

One of the more subtle, significant, but understudied responsibilities of FTC is that, in the course of their advocacy, they are expected to do more than win the particular case for which they have been briefed by their instructing department. Rather, they are expected to win while articulating, defending, and developing the government’s preferred positions on important legal questions.

Given that they do not leave the post when a new government is formed, and the fact their typical length of tenure is now much longer than that of the average Law Officer, there is an extent to which FTC bear primary responsibility for articulating the executive’s considered views on what the law is, or ought to be, in important domains like administrative and constitutional law. Alongside the Law Officers, they fulfill what Lord Sales calls a “centralising role” and “arbitraring role” in shaping governmental responses and strategies to legal issues thrown up in litigation.

Their expertise and experience seem to have led successive governments to give FTC a measure of autonomy in how they approach litigation and the submissions (or concessions) they will make on behalf of the government. Of course, as with any counsel FTC act on instructions and must advance their client’s goals as best they can within the bounds of their professional duties. They also remain constitutionally subordinate to the Law Officers, who have the ultimate say on the arguments counsel for the government will advance or concede.

But it has been acknowledged by both Law Officers and FTC themselves that the latter have an important role in settling the government’s legal positions and trying to develop and shift the law in particular directions. One recent Attorney General candidly informed the House of Commons that FTC “will help to shape the way that the Government handles its litigation and as a result will help to shape the way that public law develops.” Previous FTC have also adopted the view that part of their role was to try and shape the law in certain directions.

It was said of Sir John Laws that when he was FTC he would sometimes refrain from “taking an arguable point to win a case for fear of its leading to distortion of orderly development of the law”. Lord Woolf said that it was appreciated by the courts that he was there to “explain the position of the government… as a whole, irrespective of by whom” he was instructed; and that it was further understood that part of his role was to “advance arguments that not only were focused on winning an individual case but, more importantly, on achieving a result that was in accord with the correct development of the law as a whole”. In Sir Stephen Sedley’s view, one of the “great strengths of public law in my years both at the bar and on the bench was that Treasury counsel would if necessary put the development of a principled body of public law ahead of the need to win a particular case.”

FTC’s concern for the “orderly development of the law” is not a mere euphemism for seeking to establish pro-government precedents. Indeed, Sir Stephen has argued that the expansion of judicial review in the late twentieth century was partly facilitated by to the “principled reluctance” of successive FTC to make arguments that would limit or undermine Anisminic, even if doing so would have helped the government prevail in a given case, and more generally made the government’s life easier in many subsequent cases.

In other words, the horizon of concern of the FTC in litigation is wider than winning a particular outcome for a particular department or agency. It also includes having regard to the government’s preferred positions on important points of legal principle. Some FTC (in the past at least) also saw their role as encompassing attempting to shape the direction of public law and human rights law in principled directions. That unelected barristers, still technically in private practice, could enjoy considerable influence over the direction of the UK government’s principled stances on important public law questions, is perhaps what Lord Woolf had in mind when he described FTC as a “constitutional oddity”.

Legal Advisory Role

Providing legal advice is another core task of FTC. Like the Law Officers, FTC are typically not briefed to provide advice unless it is an issue of considerable importance to a department, or the government as a whole. Less important questions that might require external counsel’s opinion will be sent to the 400 or so barristers that act as Junior Counsel to the Crown through the Attorney General’s panels.

One former FTC said that the kind of cases they advise on “almost always raise points of law, often of very considerable interest and difficulty, and not infrequently on the cutting edge of the law’s development.” Yong usefully suggests FTC can be considered as “an intermediate clearing house for departments on legal issues which are significant, but not so significant that they should be examined by the Law Officers”. Their advice is, subject to the opinion of the Law Officers, given serious weight and likely to be treated as authoritative within government.

As with other government lawyers, the medium in which legal advice is conveyed will be fluid and vary with the circumstances. Often it will be provided orally in conference with senior departmental officials or the Secretary of State themselves. Sometimes these conferences might involve officials from several departments, depending on whether the advice has cross-departmental relevance. There is at least one recorded account of FTC being invited to provide legal advice in person at a Cabinet meeting. This occurred when Lord Woolf was invited to provide advice to Prime Minister Jim Callaghan and his Cabinet.

FTC might also be asked to provide a formal opinion or memorandum, particularly where the legal question concerns an issue of government-wide importance, so that the opinion might be shared widely, or in circumstances where the Law Officers have requested an opinion to assist their own deliberations in offering authoritative advice to government. There will usually be a close relationship between the Law Officers and the FTC. The precise extent to which the Law Officers will lean on the advice and opinion of the Treasury Counsel will doubtless vary depending on the experience of the former, and their knowledge of the kind of questions that are escalated for their decision. But generally speaking it is very common for the Law Officers to seek the input of FTC when forming their own views.

Due to their unique status as legal adviser and advocate for the whole of government, another part of the function of the FTC is to share their legal knowledge and expertise with other government lawyers and officials. To this end they are invited to speak at training events and conferences organised by the GLD. They also might be asked to help government departments and agencies adapt and respond to significant legal shifts. As just one example, Lord Sales has recounted that when he was FTC he worked closely with the national security agencies to help them adapt their internal policies and procedures to the significant legal changes ushered in by the Human Rights Act 1998.

Despite being largely unknown outside of legal/political professional and academic circles, FTC’s status as the government’s chief litigator and trusted source of legal advice makes them powerful and influential actors within the UK constitutional order. Their work, particularly the extent to which they might enjoy autonomy to shape the government’s position on matters of important legal principle, warrants much closer study.

Addendum

Last week, the Attorney General announced what may become the most significant change to the FTC role in decades. The Attorney General said that he was considering “changes to the role of the First Treasury Counsel, principally by relaxing the current requirement that the postholder undertakes work exclusively for government.” The new expectation would be that government work will broadly account for around 50% of the FTC’s practice. The FTC will now be entitled to act against the government, but they may need the consent of the Treasury Solicitor to do so.

This significant change is intended to work in tandem with the creation of a new Senior Treasury Counsel (Civil) Group (STC) that will be composed of silks who undertake to do government work, in a similar manner to junior counsel in the Attorney General’s Panels.

However, above and beyond representing the government in a particular case, it is anticipated that STC will “share responsibility with the First Treasury Counsel in co-ordinating and providing strategic direction on the most significant litigation affecting government, shaping the way that the government handles its litigation and consequently, influencing the development of civil law.”   

The hourly rate of the STC will be (unsurprisingly) considerably higher than for junior counsel in the existing panel system. STC will also receive an “annual fee of £15,000…to reflect the additional work, beyond leading on specific cases, that the posts require”, which is no doubt a reference to the expectation they will share in the FTC’s responsibility to help co-ordinate and provide strategic direction to how government handles significant litigation and cross-governmental legal issues.

Given the significance of these new positions, and their novelty, it is curious that the Attorney General’s Office would set a tight deadline of three weeks in which candidates can apply. It would seem more prudent to extend the deadline to allow for as wide a candidate pool as possible to learn about the role and consider applying.

It is too early to say anything definitive about what these changes would mean for the position of FTC. My provisional view, however, is that the combination of allowing the FTC to take extensive levels of private work and creating a panel system of STC who will jointly exercise the FTC’s existing coordinating and strategic functions, makes the role rather redundant.

Any possible role the FTC could serve in this new system to add extra value – for example, as a de facto chairperson of the STC Group who can resolve disagreements – could be more properly done by the Attorney General, who after all has overall constitutional responsibility for authoritatively settling the legal positions of the government. It may be, therefore, that this constitutional oddity will soon become a constitutional relic.

Thanks to Dr Robert Craig, Professor Michael Gordon, Dr Paul Scott for helpful comments. Thanks also to Mr Anthony Inglese CB for helpful conversations around this topic.

Conor Casey, Senior Lecturer in Public Law & Legal Theory, University of Surrey

(Suggested citation: C. Casey, ‘The “Constitutional Oddity” at the Centre of Government Lawyering in the United Kingdom: A Note on the First Treasury Counsel’, U.K. Const. L. Blog (16th June 2025) (available at https://ukconstitutionallaw.org/))