The UK government’s ‘law officers’ – the attorney general and solicitor general – are ministers who provide legal advice to their colleagues in government. The roles are unique. While the law officers are politicians from the ruling party, they are also lawyers with a responsibility to provide ministers with independent advice on legal aspects of their policies, without fear or favour.
In this short paper I offer some of my own experiences of being a law officer and put forward some ideas for how the roles can be improved. The roles are little understood – even by other ministers – but are fundamental to how the UK’s system of government works. There is no handbook issued when you become a law officer. The few academic books on the role are decades old. Like any ministerial posting, you are briefed by your private office on the ministerial code and given an introduction to the role, but this cannot prepare you for everything the job entails.
New law officers may not be aware of the full range of support and advice available to them. There are many different groups of legal advisers across government, chief among them the Government Legal Department (GLD). Understanding the relationship between the GLD, the Attorney General’s Office and other parts of the government’s legal ecosystem will enable a law officer to get the best advice, and in turn to provide better advice to their own colleagues.
Effectively, the only training available for new law officers is talking to previous incumbents and learning from their experiences. Much of a new law officer’s success will come down to their own character, legal experience and background, and the relationships they form with colleagues. I hope this guide will be of help to anyone who takes on these roles in future.
1. What do the law officers do?
The law officers perform a hybrid role in government that combines the duties of an employed lawyer with the position of a minister. This role is unlike any other in government and it is particularly important that postholders understand what the role entails. It is also important that other ministers understand what the law officers do, and what support they can – and cannot – ask the law officers for.
The highest-profile law officers in the UK government are the attorney general and the solicitor general, who are the law officers for England and Wales. The UK government also has a law officer for Scotland, titled the advocate general for Scotland, who is often a member of the House of Lords. The UK attorney and solicitor general also undertake the role of advocate general for Northern Ireland.
In essence, the law officers are employed lawyers who provide legal advice to government. The government is their sole client, and they are bound by several legal codes they are trained to apply. They can be seen as problem solvers: while they cannot judge policy itself, they can judge the risks and consequences of particular decisions and find legally acceptable solutions to any problems that arise.
Law officers must use their experience and ethos to make a success of the role – they must divide themselves between the lawyer who impartially advises their client and the politician who is aware of the political context when considering legislation and policy.
The roles of attorney and solicitor general are, however, entirely different from that of the lord chancellor, who has a duty to maintain the rule of law and the independence of the judiciary.
Law officers in the devolved administrations
There are different models of law officers in the different governments in the UK. In the UK government, the attorney and solicitor general are both parliamentarians who have legal experience – Conservative governments tend to appoint law officers from the Commons, while most of the attorneys general in the 1997–2010 Labour government were from the Lords. In my view having law officers drawn from the Commons is the better model, because it brings influence in parliament. MPs can talk to the law officers regularly, ask questions and discuss issues. This allows the law officers to build relationships and adds a political dimension to their work.
The Scottish government has two law officers, the lord advocate and the solicitor general. Unlike at the UK level, the Scottish law officers are not members of the Scottish parliament – they are lawyers but not politicians. They are are, however, ministers in the Scottish government.
In Wales, the position is not as fixed. Previous counsels general have not been members of the Senedd (at times the role has been held by a senior QC). Currently, however, the counsel general is a member of the Senedd.
The post of attorney general for Northern Ireland was established in 2010, after justice policy was devolved. They are supported by the solicitor to the attorney general. Neither is an MLA, though the attorney general can participate in some assembly proceedings (but cannot vote).1
2. What makes a good law officer?
Each attorney and solicitor general will approach the role in their own way, based on their own legal and political experience, the political context of their time in office and their own priorities. They will rely on their ethos as lawyers and their legal experience to provide advice to the government. Individual character and personality make a difference too – law officers need to be able to work with others and they are strongest when they work as a team, with each other and with other lawyers across government.
Nonetheless, there are some things that any law officer can do to make their time in office a success. In this section I set out what I learned from my time as solicitor general and subsequently about how to do a good job.
Maintain a balance between law and politics
In essence, there are two ‘models’ of law officer: the lawyer-politician and the politician- lawyer. The former prioritises acting as a lawyer. It can be said that recent examples include Dominic Grieve and Geoffrey Cox, the latter telling an event at the Institute for Government that “the attorney general must ensure that he gives honest, candid and independent advice to the government… it is not acceptable for an attorney general to massage or improve his advice for the purposes of party politics.”2 If a law officer is too much of a lawyer, however, there is a danger that they ignore the political context in which we all operate. Law officers therefore need to understand what the government is trying to achieve, and bring an understanding of the legal framework around that.
The other type is the politician-lawyer, who prioritises being a politician. Law officers who prioritise politics fall into the immediate and more grave danger of not being true to their ethos, and their professional conduct as a lawyer. They adapt their advice to reflect the political priorities of their ministerial colleagues. The danger is people then assume that the law officer will do whatever the government wishes, when a good lawyer needs to be able to provide advice without fear or favour.
The best law officers are a happy medium between both types. To get the balance right, they must apply the law considering their political knowledge while maintaining their professional independence. Striking the right balance is hard, but the best law officers manage this tension daily. Actively considering both the legal and political aspects of a question will help them provide better advice as the two dimensions can act as checks and balances on each other.
Key to this balance is the need to understand and deal with the reality of the convention that law officers’ advice will be privileged. Generally speaking, the law officers’ advice to the government, like all legal advice, is privileged and is not made public. However, when providing advice on particularly contentious issues, the law officers should be aware that given political and public interest, their advice may be leaked or required to be published – as when Geoffrey Cox’s advice to Theresa May on the Northern Ireland backstop was published following parliamentary pressure.3 They should still advise without fear or favour, but a savvy law officer will appreciate that their advice may become public and bring their political understanding to bear on the content and arguments of the advice accordingly.
Law officers need to be political enough to tell what occasions will require them to get involved. To work out whether they should get involved in particular, more complex prosecution decisions, the attorney general can, after determining whether there is a reasonable prospect of conviction, assess the public interest in the case going ahead by conducting a ‘Shawcross exercise’.4 Devised by the post-war attorney general Sir Hartley Shawcross (1945–51), this is a process by which law officers take soundings from those in government about the political and public interest ramifications of a particular prosecution decision. Shawcross exercises are rare. One example occurred in 2006, during the Serious Fraud Office’s (SFO) investigation of bribes paid to Saudi officials by the arms company BAE Systems. As a result of the Shawcross exercise, the SFO dropped its investigation, finding it not to be in the wider public interest, but this decision was found to be unlawful by the House of Lords. BAE Systems eventually reached a settlement with the SFO.5
On occasion, interdepartmental issues can require a law officer’s attention. Here, the law officers do not need to adjudicate between the disagreeing departments. They should instead provide further advice to achieve a reasonable solution.
Maintain good working relationships
The attorney general and the solicitor general
A strong working relationship between the attorney general and the solicitor general is crucial. Since the Law Officers Act 1997, both have the legal powers to do the same work.6 Before this Act, the attorney general delegated any work to the solicitor general
at their discretion. Today, powers of both offices are now indivisible. Conventionally, the attorney general attends cabinet and deals with national security issues including work that requires the highest level of security clearance, known as ‘STRAP’ work (although the solicitor general may also take on this work if required).
The best teams divide the work equally. Often, the attorney general will be incredibly busy on a particular job and the solicitor general will take on the bulk of other issues, including case work. At other times, the solicitor general may focus on one matter while the attorney general works on several issues.
When Jeremy Wright was attorney general and I was solicitor general, we divided things so that I did a large share of the domestic work. This included a lot of crime and sentencing work, and parliamentary legislation. Jeremy focused on national security work and many of the higher-profile public cases. For example, Jeremy represented the government with the first Treasury counsel (the government’s independent barrister) at the Miller I case, on the government’s right to trigger Article 50 and begin the process of leaving the EU, at the Supreme Court.7 He also conducted several high-profile unduly lenient sentence applications to the Court of Appeal.
This division of labour was underpinned by a great relationship between us. Unfortunately, not all law officers have such a strong relationship. The offices of the attorney and solicitor general in the House of Commons are almost unique in that they have an internal connecting door. Where the relationship between the law officers is close, that door is open more often than not, with each law officer able to quickly speak to their colleague about matters of law or politics, or even to unwind at the end of a long working day. When that door is open and unlocked, the law officers have a good relationship. When it is locked, the relationship is far weaker. There was at least one pairing since 2000 that saw the door firmly closed, and indeed not used, principally because one of the law officers chose to use another room in parliament in which to work.
The cabinet
One way of distinguishing between the law officers is that the attorney general attends cabinet whereas the solicitor general does not. But it is important to remember that the former is not a member of cabinet and attends at the invitation of the prime minister (in practice this tends to be a standing one).
It is right that the attorney general should not be a full member of cabinet, as this helps avoid political interference with the course of justice. This convention goes back to the Patrick Hastings case. In 1924, when Hastings was attorney general, the cabinet discussed a particular prosecution case with the result that it was dropped. The prime minister, Ramsay MacDonald, misled parliament about that cabinet discussion, leading to his government collapsing. The fact that the attorney general was a full member of the cabinet unavoidably put his advice centre stage in the scandal, contributing to the collapse – it was this episode that prompted steps to change the role from a full cabinet member to make clear that it was not related to explicitly political decision making or to discuss prosecutorial cases in cabinet.
This caution can go too far the other way, however. At times, the law officers have not been properly included in discussions about the lawfulness of government action. Famously, there was little prior consultation on the legality of military action taken during the Suez Crisis in 1956, which contributed to the resignation of Anthony Eden as prime minister.
These two cases illustrate the balance needed for law officers to be effective members of a government. Although the attorney general should not be a full member of the cabinet, they should be present to hear about events, and to warn about the legality of decisions. Attending cabinet gives the attorney general an inside track to the politics behind the work. Context matters in legal work, even in private practice – legal advice is not provided to clients in an arid way. Lawyers educate themselves about the wider issues at stake. There is nothing unique about requiring context; the role of a government lawyer and of a law officer is given colour by political context.
It is also important for the law officers to remember that they serve the government as a whole, not individual ministers. Law officers’ advice was material in the Westland affair, in which a letter from the then solicitor general Sir Patrick Mayhew to Michael Heseltine, highlighting “material inaccuracies” in the latter’s case for his preferred bidder for a defence contract, was leaked to the press, leading to Heseltine’s resignation during a cabinet meeting. The fact that it was critique by a law officer that caused the incident showed that law officers should not advise individual ministers, because this can fracture cabinet – their advice must be for government as a whole.
Other MPs
The law officers must be disciplined about how they deal with colleagues in government and parliament. I spent my time telling colleagues about process. A colleague would come to me saying they were really worried about such-and-such a legal question, and I would respond by explaining the process for that, which they found helpful.
If MPs from another party came to me as a law officer for advice, I would treat them in the same way as I would treat ministers. I would always clarify that law officers cannot give MPs advice, be it formal or informal. Law officers can inform MPs about the process and about how to go about seeking advice, and can also explain aspects of legislation. But they must have a high degree of care around what they say, to avoid giving colleagues the wrong impression about their role. But the ability to have these conversations is part of why it is beneficial for the law officers to be members of parliament.
Parliament
As well as advising government ministers and individual MPs, the law officers – particularly the attorney general – also have a role in advising parliament as a whole. While formally the attorney general advises the Lords and the Commons, most of their focus will be on the lower house. This advice can be “in relation to the constitution of and conduct of proceedings in the House, the conduct and discipline of members, and the effect of proposed legislation.”8 Peter Rawlinson, who served as solicitor general in Harold Macmillan’s government, was of the view that “the loyalties of a law officer must be first to the crown, second to parliament, and only thirdly, almost incidentally, to the administration.”9 Law officers must remember their obligations to parliament as a whole, as well as to their government colleagues.
Working with officials across government
Though the two roles are most senior, law officers are supported by legal colleagues across government. Building strong relationships with, and understanding the role of, each of these various groups will help law officers provide the best advice they can.
The Attorney General’s Office
The Attorney General’s Office (AGO) is a small but functional department. The Treasury solicitor (currently Susanna McGibbon)10 is technically the permanent secretary in the AGO, but the office is run in practice by a director general as its staff only number around 40 civil servants.
With these civil servants and a unique (in my experience) joint private office, the law officers are exceptionally well served. I understand that the competition for places at the AGO is a fierce one as it is a much sought-after posting.
A lot is asked of the team, who often work extremely hard under great pressure. There needs to be clear flexibility in the system to ensure that, where necessary, extra capacity can be brought in at short notice. That does not mean that the AGO needs to be a much larger office, but it is important that it does not lack the capacity to provide quality legal advice, especially on matters of international law. If the law officers feel they need more resource, they should make the case for this.
The Treasury solicitor and the civil service
The Treasury solicitor is the head of the Government Legal Department (GLD), the government body which, since 2015, employs the legal advisers to most departments, and also head of the Government Legal Profession, a wider grouping which includes legal teams beyond the GLD. Previously, lawyers worked for a particular department although some were part of the Treasury Solicitor’s Department; they now work for the GLD, and departments, are their clients.
Since most of the work a law officer is involved in is commissioned through the GLD, they need to have a strong relationship with the Treasury solicitor. They should also work closely with the GLD. As solicitor general, I was interested in the day-to-day of what government lawyers do and I used to visit various departments and talk to the teams about their work and any problems and challenges that they might be facing.
Cabinet Office lawyers
The Cabinet Office’s in-house lawyers, known as COLA (Cabinet Office Legal Advisers), are a powerful team and have a prominent voice in the centre of government. COLA is rightly the first port of call for the varied work done by the Cabinet Office.
COLA is a major part of the GLD, and the team must always take care to ensure that, despite its location at the centre of government, it is no different from legal teams in other government departments. The AGO must retain its unique status.
There are issues of high policy – going to war, leaving the European Union, and others of similar magnitude – that are so important they must be addressed by the AGO alone, and not COLA.
Counsel to No.10 Downing Street
Counsel to No.10, a team set up in final years of David Cameron’s premiership, is seldom discussed but key to the legal landscape in government. The first lead counsel was Andy Hood, who had worked for the AGO and was seconded to No.10. I regularly emphasised that Andy was a member of the AGO first, and of the No.10 team second. The current lead, Lord (Harry) Carter, serves No.10 first. He has, however, had experience working for the AGO and the Home Office and has been mindful of the relationship with the
law officers. Having counsel in No.10 has been healthy because the prime minister previously did not have a government lawyer whose input they could request.
The danger is that the lead counsel could supplant the attorney general as the prime minister’s primary lawyer. To avoid this, the attorney general should be vigilant and maintain regular contact with whomever has that position. It is right that the prime minister has some, albeit limited, legal counsel. I kept in regular contact with Harry and his colleagues to ensure that there was no conflict of interest, and that the AGO was not marginalised. I am happy to say that this never happened during my time in
government. In the longer term, however, it is probably wise to formalise this role and to ensure that it is the AGO which remains the employer of the No.10 General Counsel.
Special advisers
There is an interesting question as to whether the law officers should have special advisers. Ministers who are not members of the cabinet can only have a special adviser with the express permission of the prime minister; the current attorney general does. During my time as solicitor general, the law officers did not – Dominic Grieve was particularly against it, as he thought that the presence of a political adviser “might have caused some problems within the department” and that not having a special adviser allowed him to develop a closer relationship with the staff of the AGO.11
As Dominic says, this is a finely balanced question and there are understandable reservations around it. In my view, not having a special adviser can disadvantage law officers as they are then not plugged into the cross-government network of advisers, limiting their access to the wider context of government decision making. However, if a special adviser played the role in the traditional way, solely focusing on political questions, that would represent too much of an injection of politics into the work of
the law officers. Whether to have a special adviser role is an issue that law officers must handle with care; on balance, it makes sense to appoint one, but their role should reflect the less political nature of the law officers’ role and they must not distract the law officers from their legal responsibilities.
Make the most of the resources available
The law officers have access to an incredible range of legal resources and they should be confident in using all the tools at their disposal. They should get advice from their own staff in the AGO; from the GLD; and where appropriate, from independent, non- government counsel.
My view is that on big, important questions, the law officers should be perfectly free to go fishing in the large pond available to them and catch as many fish as they like. If law officers get advice from different sources, they can use them to develop a position that is informed by all sorts of different influences but which is then the opinion of the law officers. Where things go wrong is if the law officers forget that and do not seek
different advice. For me, hearing a range of views on difficult issues was always helpful, almost like a judge hearing different arguments, and then as a result coming to an independent view. Tension between different pieces of advice can often lead you to the right outcome. Law officers should not worry about tension – they should be confident in seeking the right advice to inform their own views.
Likewise, ministers can seek second opinions, but they should tell the law officers when they do so and explain why. But ministers should not make it a habit, because there is an overall impact on the trust between lawyer and client, the GLD and minister in the case of government. Too much external advice risks undermining that essential trust.
3. Does the role of the law officers need to change?
During my time as a law officer, and subsequently as the secretary of state for justice, I identified an important need for clarity about how the law officers work with the GLD. This change would improve the effectiveness of legal advice within government.
The relationship between the law officers and the Treasury solicitor and the Government Legal Department should be clarified
Following reforms introduced in 2015 the GLD, headed by the Treasury solicitor, is the body that employs the civil service lawyers in government.
Before those reforms, departmental lawyers worked for their departments and the relevant secretary of state was answerable for them to parliament. This means that currently there is no minister who answers for the work of the GLD in parliament – the law officers can and should perform this role.
The concept of ‘superintending’ is not fully clear and can come under strain, but the law officers’ relationships with the Crown Prosecution Service (CPS) and the Serious Fraud Office (SFO) provide useful models for how the relationship with the GLD could work.
Broadly, the law officers are responsible for the purse strings of the organisations – they allocate the money – and are responsible for the overall strategic direction of these two organisations. They are also answerable for them in parliament.
At the same time, the law officers are responsible for maintaining the operational independence of each and for and ensuring that their integrity is unimpeachable. They do not get involved in the day-to-day running of either organisation. The relationships with the CPS and the SFO are underpinned by memorandums of understanding (MoUs) and, in the case of the CPS, legislation12, which set out clearly what the role of each officeholder and organisation.13
The latest annual report from the GLD states that they are working with the Attorney General’s Office to review “the framework” for the relationship between the GLD and the law officers.14 This reviewed framework should make clear that the law officers superintend the work of the GLD, as this would help defend the independence and impartiality of the advice given by GLD lawyers to ministers.
A clarified relationship between the law officers and the GLD would be able to protect the organisation’s independence while also making it possible for them to answer for it in parliament – the GLD receives public funds and needs to be accountable to parliament for how that is spent. While the Treasury solicitor is the accounting officer for the GLD, and can therefore be summoned by the Public Accounts Committee, they are not a politician and so cannot answer directly to the House of Commons for how the money is spent. If a question is raised in the chamber about the way the system for legal advice in government is working, then it is the law officers who must be able to answer that question.
4. What do other ministers need to know about the role of the law officers?
For the law officers to serve the government as best they can, their ministerial colleagues in other departments also need to understand the role and what the law officers can – and cannot – do for them. The starting point for ministers should be the ministerial code, which states clearly that ministers should consult the law officers “in good time before the government is committed to critical decisions involving legal considerations”.15 The code also says ministers must consult the law officers if they are contemplating defamation action, as there may be implications for them in their official position.16 But the code cannot spell out every eventuality, so new ministers need to come to a proper understanding of the role of the law officers as soon as possible.
This will help them get the most useful advice from the law officers – and most importantly, to do this at the appropriate time. A real difficulty law officers face is being approached directly for legal advice by a minister. Whenever I was approached by an anxious minister (though did not happen often) I would clarify that they had to go to their own department’s lawyers as a point of first contact and that the matter could only be escalated afterwards – even then the law officers cannot guarantee that they will personally address it.
At the same time, ministers should know when they should bring the law officers into a discussion – something again a proper understanding of the role will tell them. Law officers have an unremitting workload, and there is nothing worse than being blind-sided by a problem they should have been informed of earlier.
When new ministers take office, they should be given proper training on different aspects of their role, including how to work with the law officers. Adding further details of the law officers’ role to the ministerial code would not be appropriate – it is right that the code is not overly prescriptive. Instead, a short memorandum should be provided to new ministers on the role of the law officers. Below are some key points I would recommend including in such a memorandum.
On the role of the law officers
- Though the law officers are ministers, when they act as lawyers they must do so independently. This includes providing full and frank legal advice to the government, as any lawyer would their client.
- If you are a minister, you have your own legal team in your department who should in the normal run of things be the first point of contact for sound legal advice on all matters relating to the operation of your department and policy development.
- The law officers deal with more sensitive and weightier matters – as a point of last resort, rather than as a backstop. One example would be a difference of opinion between departments on the interpretation of particular legal questions, or those affecting policy. That would be the moment for a law officer to opine. Another would be if the matter was seen to be of such public importance that the view of a more senior legal figure in government was needed – recent examples would be Brexit or Covid emergency legislation.
- And finally, and most importantly, the law officers are not the personal lawyers of ministers or MPs. If you have a personal legal issue, you will have to seek advice, like any other citizen. The law officers are there to give you advice in your capacity solely as a government minister. MPs cannot for instance seek advice from the law officers on constituency issues.
On judicial review
As well as misunderstandings about the role of the law officers, there are some common misunderstandings among ministers about certain aspects of the legal process that should also be set out in the memorandum. Judicial review, and what it means for them personally, is key to this.
New ministers who are not lawyers have no reason to understand the detail of judicial review, particularly what happens when a department loses. One minister approached me saying that that they were worried over being held “in contempt”. I had to explain that it is the office of the secretary of state that has been held in contempt, not the individual. Ministers should know that legally they must subdivide themselves. In one capacity, they are the officeholder as secretary of state, but that is not them personally. Explaining this in basic terms to non-lawyers will help ministers do their jobs better.
Conclusion
The work of the law officers is fundamental to the functioning of our democratic government and to the rule of law. But the role is not well understood and can vary substantially depending on who is in post.
The law officers will always have to manage a difficult balancing act: they need to understand and react to the political priorities of their colleagues while ensuring that the legal advice they give is reached without fear or favour. The priorities of individual law officers and the context in which they are doing the role can change exactly how they approach that balance, but it is important that they do not become too much of either, lawyer or politician.
The relationship between the law officers and the Government Legal Department (GLD) should change so that the law officers can answer for the GLD properly in parliament: the GLD provides an essential service to government and should be properly accountable. This does not mean ministerial interference in its day-to-day work but
an overarching responsibility to ensure its independence and to answer for its use of public money.
It is also essential that other ministers understand what support the law officers can and cannot provide, and how to best seek this from them. Making sure that the law officers are brought into relevant discussions as early as possible will lead to better decision making by all ministers.
These are my reflections from my time as a law officer and as a minister. Other law officers may have different emphases. Each will approach the role drawing on their past legal experience and responding to the political context they find themselves in. But what all postholders should recognise is the individuality of the role, which is like no other ministerial office. Properly understanding this, and ensuring colleagues do too, will help both serve their government, and therefore the country, to the best of their ability.
Robert Buckland is MP for South Swindon. He was solicitor general between 2014 and 2019 and justice secretary between 2019 and 2021.
