Law officers

Who are the law officers?

There are three UK government law officers: the attorney general, the solicitor general and the advocate general. Victoria Prentis KC MP is attorney general, Michael Tomlinson KC MP is the solicitor general and Lord Stewart of Dirleton KC is the advocate general for Scotland. The attorney general also holds the separate office of advocate general for Northern Ireland. The core function of the law officers is to advise the UK government on legal matters, help ministers to act legally, and in accordance with the rule of law, and to oversee the work of prosecution services.

Speaking at the Institute for Government in February 2020, Geoffrey Cox, the then attorney general, described the role of the law officers as follows: “It is vital as a law officer that one speaks truth unto power. The law officer has to stand as a clear and uncompromising defender not only of the black letter interpretation of the law but also of the legal values that underpin it.”

Are the law officers politicians?

The law officers are junior ministers appointed by the prime minister. They must sit in one of the Houses of Parliament.

While they are political appointees, the law officers are, by convention, expected to have a deep knowledge of the law and to have worked in the legal profession. Victoria Prentis was a government lawyer for many years before becoming a Conservative MP.

Do the devolved governments have law officers?

Each devolved government has law officers, who are the principal advisers to the administrations on legal issues.

The senior Scottish government law officer is the lord advocate, who is supported by the solicitor general for Scotland.

The Welsh government’s law officer is the counsel general.

The chief legal adviser to the Northern Ireland executive is the attorney general for Northern Ireland.

Do the law officers attend cabinet?

The law officers are not cabinet ministers, but it has become the practice for the attorney general to attend cabinet meetings. In a report on the constitutional role of the attorney general published in 2007, the then Constitutional Affairs Committee recommended that the attorney general should only attend by invitation, and only to consider specific relevant agenda items.

In practice, law officers have taken on differing roles in cabinet. Robert Buckland claimed that he “used to intervene on non-law officer matters”, believing it his role “to intervene on all sorts of issues of policy and handling”.

What are the duties of the attorney general?

The attorney general is the head of the UK Government Legal Department, the chief legal adviser to the government, and the chief law officer in England and Wales. They provide advice to the UK government on the most sensitive or difficult legal issues, and oversee major litigation involving the UK government.

The attorney general also manages the prosecuting authorities in England and Wales: the Crown Prosecution Service, the Serious Fraud Office, and the Revenue and Customs Prosecution Office. They oversee the Crown Prosecution Inspectorate, which inspects how cases are prosecuted, and the Service Prosecuting Authority, which handles offences and criminal cases relating to the armed forces, and prosecutors in other departments.

A limited number of offences - for example, all offences under the Official Secrets Act – cannot be prosecuted without the consent of the attorney general.

The attorney general also answers questions on legal advice to government in parliament.

The attorney general has a number of public interest functions, which are performed independently of government. They have the power to refer appeals against unduly lenient sentences to the Court of Appeal and request that the High Court re-examine inquests. They are responsible for taking legal action in the public interest if certain types of contempt of court have been committed.

What is the role of the attorney general in relation to international law?

The attorney general advises the government on questions of international law, including the UK government’s obligations under international treaties such as the UK–EU Withdrawal Agreement.

There is a debate as to whether the law officers’ obligations to uphold the rule of law extends to the UK’s international law obligations. Jonathan Jones, who resigned as head of the Government Legal Department in September 2020, made clear at an Institute for Government event in February 2020 that he regarded observing the UK’s international law obligations as integral to upholding the rule of law. 

What are the duties of the solicitor general?

The exact nature of the division of labour between the attorney and solicitor general depends on the relationship between the two post-holders at any one time. In general, the solicitor general deputises for, and takes on some of the duties of, the attorney general. They provide support to the attorney general in overseeing the Government Legal Department and the prosecuting authorities in England and Wales, and on civil litigation and civil law matters.

What is the role of the advocate general?

Scotland has a separate legal and judicial system from England and Wales and the advocate general is the UK government’s chief legal advisor on Scots law. This includes providing legal advice to UK government departments on legislation affecting Scotland. The advocate general represents the UK government in the courts and tribunals in Scotland.

Under the Scottish devolution settlement, the advocate general is responsible for assessing whether the Scottish parliament has the power to make the laws it has adopted (whether the law is within its legislative competence). After the Scottish parliament passes a bill, there is a four-week period during which the advocate general (along with the other law officers) may refer a question about legislative competence to the Supreme Court.

Is the legal advice of the law officers made public?

In most cases, no. As with private organisations or individuals, legal advice to the government is subject to legal professional privilege and is not subject to disclosure under the Freedom of Information Act.

The Cabinet Manual and the Ministerial Code state that the law officers’ advice must not be disclosed without their authority, nor should the fact that the law officers have advised, or have not advised, the government be disclosed. This guidance applies only to law officers’ advice, not all government legal advice.

The attorney general’s advice has nevertheless been disclosed publicly on several occasions. In 2003, the then attorney general Peter Goldsmith (Baron Goldsmith) disclosed the legal basis for the use of force in Iraq. In November 2018, the House of Commons voted to compel the then attorney general, Geoffrey Cox, to publish his legal advice on the UK–EU Withdrawal Agreement. 

Why is the role of the law officers contentious?

The position of law officer is a hybrid role, located at the intersection of politics and the law. In a guest paper for the Institute for Government, Robert Buckland emphasised the political dimensions of the office, arguing that the law officers must seek to maintain a balance between law and politics and “apply the law considering their political knowledge while maintaining their professional independence”. While they are politicians and government ministers, the law officers are expected to act as independent guardians of the rule of law and provide impartial legal advice to ministers and government departments.

This dual role has at times given rise to concerns that political considerations could impinge on the independence of the law officers’ legal advice. In 2006, the House of Commons Constitutional Affairs Select Committee argued that: “legal decisions in prosecutions and the provision of legal advice should rest with someone who is appointed as a career lawyer and who is not a politician or a member of the government.”