By Joanna George
Research Associate, University of Cambridge
The Attorney General for England and Wales (‘AG’) is a senior law officer whose hybrid role uniquely combines the demands of being a political appointee for the UK Government with the legal function of being the chief legal adviser to the Crown. This means that the role requires the officeholder to maintain careful balance between acting as an independent guardian of the rule of law who provides impartial legal advice to ministers, government departments, the Cabinet, Parliament, and Sovereign with the partisan and political duties of being an MP or Lord representing their political party and/or constituency.
The AG is one of eight law officers in the UK. Two hold the office of Attorney General. There is a separate Attorney General for Northern Ireland who is jointly appointed by the First Minister and deputy First Minister of Northern Ireland. This post was established in 2010 after justice policy was devolved to the Northern Ireland Executive. However, unlike the AG, the appointment of the Attorney General for Northern Ireland is non-political, reflecting Northern Ireland’s unique and sensitive political dynamics. The AG concurrently holds the separate office of Advocate General for Northern Ireland.
Because of the increasingly high-profile yet not widely understood role and function of the AG in a UK Government context, this explainer will focus on its constitutional significance. Why is it important for the AG to give legal advice without fear or favour? Would the role be more effective if it were conducted through a stronger legal lens? What are the disadvantages of the AG becoming too political?
A historic and evolutionary role
The origins of the AG can be traced back to as far as 1242 when Lawrence del Brok, a professional attorney, was paid a regular fee to undertake certain prosecutorial functions on behalf of King Henry III. In this context, it is clear that the role during this period was partisan in nature, with the key objective being to protect the King’s interests. However, from the 15th century the role transitioned to giving advice to the House of Lords and by the 17th century the AG was allowed to sit in the House of Commons. How did AGs achieve this?
This was facilitated through developing trust with politicians by providing independent advice on law and legislation whilst consistently maintaining high integrity. This can be seen as an early example of the importance of holding strong standards and ethics in public life. Would the role of the AG as we know it today have existed if the early officeholders lacked high integrity?
By the time of the early 19th century the AG was regarded as the most important individual within the Government Legal Department. By 1892 the AG could no longer work as a barrister in private practice alongside their government role. This sacrifice led to greater parliamentary duties and the creation of their own department. By the early 20th century, the AG was granted a position at the Cabinet table. This does not mean, however, that the AG is a member of the Cabinet like the Lord Chancellor and Secretary of State for Justice or the Secretary of State for the Home Department.
Whilst the AG does receive a ministerial salary, they only attend Cabinet at the invitation of the Prime Minister so that they can participate in the deliberations of government activity and to provide impartial legal advice where necessary. By not being within the inner ring of the Cabinet – rather, a visitor on the periphery – this dynamic aims to avoid political interference with the course of justice. It also intends to avoid tension from arising between the different governmental and Sovereign ‘clients’ the AG has.
The AG’s functions are wide-ranging and legally diverse, but the key function is to provide independent and impartial advice to government – essentially an in-house lawyer to the government of the day. There are five main functions:
- Executive role – the AG overseas their own office and has a supervisory role over a number of non-ministerial departments and executive agencies. This includes, but is not limited to, the Government Legal Department, the Crown Prosecution Service, the Serious Fraud Office, and the HM Crown Prosecution Service Inspectorate.
- Advisory role – the AG provides legal advice to the Sovereign, Cabinet, Government Legal Department, Ministers, and Parliament. Issues relating to rule of law concerns and devolved legislation will also be advised on. Notably, the current AG has attracted controversy for her failure to protect the rule of law or risk breaching international law on numerous occasions. This includes failing to protect judicial independence and putting forward the UK Internal Market Bill and, more recently, the Northern Ireland Protocol Bill which would violate international law. The current AG has also recently advocated UK withdrawal from the European Convention on Human Rights, which would breach the Good Friday Agreement that is binding on the UK in international law.
- Public interest role – the AG exercises certainty statutory and prerogative or common law functions in relation to the criminal and civil legal systems in England and Wales.
- Criminal law role – the AG exercises several functions within the context of criminal law. This includes, but is not limited to, giving consent for certain prosecutions, protecting against vexatious prosecutions, initiating certain appellate proceedings (which tries to get a legal decision changed) and discontinuing certain criminal trials.
- Civil law role – the AG exercises more non-statutory functions than statutory. This includes protecting against vexatious litigation, appointing special advocates in complex cases and intervening in family law and Upper Tribunal cases which involve charities.
The risks of politicisation
There has always been a risk that the unique role of AG can become politicised due to the delicate legal and political balance required to make a success of the position and to maintain constitutional harmony between the Government and the judiciary. However, by and large, the vast majority of occupiers have resisted becoming the ‘politician-lawyer’ that Sir Robert Buckland QC MP has spoken of. Under this model, the AG prioritises being a politician and recklessly falling into ‘grave danger of not being true to their ethos, and their professional conduct as a lawyer’. It is for this reason that the ‘lawyer-politician’ model has historically been adhered to.
Yet a new report by the All Party Parliamentary Group on Democracy and the Constitution has expressed concerns that the functions outlined above risk being greatly undermined and underachieved. This has been caused by the current AG’s politicisation of the office. For example, the current AG has a Special Adviser (the first AG in British history to do so) which is normal for Cabinet ministers but not the AG. Another cause has been through the appointment of occupiers with little legal experience who are less knowledgeable and familiar with different areas of law that a lawyer with several decades of practice would have accumulated throughout their long legal career. Certainly, the latter would be less inclined to risk their legal reputations, and for good reason.
With the Prime Minister’s resignation last week as Conservative Party leader and impending departure under a cloud of ethical controversy for (but certainly not limited to) playing fast and loose with the UK’s constitutional norms, has the AG adequately fulfilled her constitutional duty of assisting ministers’ understanding of their constitutional duties?
The decision of the current AG to remain in office whilst contesting to become leader of the Conservative Party and Prime Minister appears to contradict the ‘statutory legal and constitutional duties’ she acknowledges she holds. The most appropriate course of action would have been to resign before announcing her candidacy as the legal and political balance required for the role of AG must be maintained. Running as a candidate whilst still AG could be perceived as a conflict of interest and at the very least places in acute tension the political and legal dimensions of the AG’s role. It also suggests that she is unaware – or is willingly choosing to ignore for the sake of her own political ambitions – the constitutional duties of her own office.
Indeed, failure to resign may mean that the AG’s choice of risking her legal reputation for the sake of appeasing the Government’s poor regard for the rule of law will not work in her favour in the long-term should she succeed in her political ambitions to carve out a legacy that is better than and distinguishable from Johnson’s. But it is up to her – and also the Lord Chancellor who is obliged to ‘rein in…colleagues who say things which sit uneasily with the rule of law’ – to make that important constitutional and professional decision.
- Institute for Government: ‘UK government law officers’
- House of Commons Library: ‘The Law Officers: a Constitutional and Functional Overview’