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The role of the law officers: where politics and law collide

Raphael Hogarth arns of the danger of a politician-lawyer giving advice that they believed to be wrong

Raphael Hogarth responds to Sir Robert Buckland's guest paper for the IfG, and warns of the danger of a politician-lawyer giving advice that they believed to be wrong

The role of attorney general is an increasingly ‘frontline’ political position. Dominic Grieve and Jeremy Wright, in their days as AG, spent most of their time giving confidential advice in the shadows of Whitehall. Geoffrey Cox was catapulted into the spotlight by the politically totemic status of his advice on the Northern Ireland protocol to the withdrawal agreement. Suella Braverman, his successor, is now the government’s main public messenger as it advances a challenging set of legal arguments on the same issue.

This increasing public focus on the AG has raised some difficult questions about the proper role of the law officers. In a guest paper for the Institute for Government, former solicitor-general and Lord Chancellor Sir Robert Buckland reflects on these questions, and on how government can get the best out of the attorney general and solicitor general .

Sir Robert rightly draws attention to the risks of the “politician-lawyer” model of AG

Sir Robert describes two models of law officer. One is the “lawyer-politician”, who prioritises their role as a lawyer. He puts Dominic Grieve and Geoffrey Cox in this camp. Sir Geoffrey is perhaps a more borderline case, but it is true that he began to fall out of favour with Conservative colleagues after giving some very frank, very politically inconvenient advice about an ill-fated attempt to renegotiate the Northern Ireland protocol.

The other model is the “politician-lawyer”, who prioritises being a politician. Sir Robert does not mention any examples but the incumbent, Suella Braveman, seems an obvious candidate. Braverman can often be seen in the TV studios batting for the prime minister, including on policy issues outside law or the constitution.

When discussing questions of law, her legal analysis is also served with a side of politics. For instance, when it was put to her by Robert Peston earlier this week that the UK could not invoke the principle of ‘necessity’ to depart from its treaty obligations, she said that this was was “your Remainiac make-believe”. That is not a line of argument that she would have deployed for a judge in her time as a barrister. Emily Thornberry, her Labour shadow, has a similarly political take on the role, having often toured the studios attacking the prime minister over ‘party-gate’.

Both, as former practising lawyers, will no doubt be acutely aware of the “grave danger” of which Sir Robert warns, that a politician-lawyer may be tempted to “adapt their advice to reflect the political priorities of their ministerial colleagues”.

It is one thing for a politician-lawyer to have one eye on the political context when calibrating the tone, timing or presentation of their advice – any decent lawyer, whether in government or the private sector, will keep in mind their client’s wider priorities when delivering difficult news.

It would be quite another thing for a politician-lawyer ever to give advice that they believed to be wrong. That would degrade an important constitutional check on government action. It would also make the law officers useless in practice, as bad advice leads to losses in court. No.10 has sometimes complained about the attorney general not being a “team player” – but if members of the team are proposing to commit a foul, it is the law officers’ job to say so.

Too many ministers have a poor understanding of what their legal advisers are for

Sir Robert also complains that some ministers have insufficient understanding of the role of the law officers, and of the process of judicial review. Sir Robert recommends that new ministers be given proper training on these matters, upon taking office, by way of a short memorandum.

This echoes the IfG’s own findings in judicial review and policy-making. We found that policy makers, at both political and official levels, could develop a more constructive relationship with lawyers and the law. Lawyers are not always consulted at the right time in the policy process: if they are brought in before objectives and options have been identified then their advice is not much use, and if they are brought in too late then it can be too late to correct legal errors.

We also found that policy makers’ attitude can mean that they fail to get the best out of their lawyers. Some see legal advice as an obstruction in pursuit of their policy objectives, rather than a positive contribution to achieving those objectives in practice. They can also fail to understand that, while lawyers advise on legal risk, it is up to ministers to decide on their risk appetite.

The government’s lawyers, from the law officers at the top right down to junior civil servants in the Government Legal Department, are there to help. They are most helpful when ministers and policy makers understand how to use them – and are prepared to hear an honest, frank view, whatever it is.

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