APPENDIX 5: COMPARISON OF THE PROVISIONS
RELATING TO THE LAW OFFICERS FROM DIFFERENT EDITIONS OF THE MINISTERIAL
CODE (SEE PROFESSOR BRADLEY'S PAPER FOR FURTHER INFORMATION)
Blair's 1997 version of the Ministerial Code
The Law Officers
22. The Law Officers must be consulted in good time
before the Government is committed to critical decisions involving
legal considerations. It will normally be appropriate to consult
the Law officers in cases where:
a. The Legal consequences of action by the Government
might have important repercussions in the foreign, European Union
or domestic field;
b. A Departmental Legal Adviser is in doubt concerning
(i) the legality or constitutional propriety of legislation
which Government proposes to introduce; or
(ii) the vires of proposed subordinate legislation;
or
(iii) the legality of proposed administrative action,
particularly where that action might be subject to challenge in
the courts by means if application for judicial review;
c. Ministers, or their officials, wish to have the
advice of the Law Officers on questions involving legal considerations,
which are likely to come before the Cabinet or Cabinet Committee;
d. There is a particular legal difficulty which may
raise political aspects of policy;
e. Two or more Departments disagree on legal questions
and wish to seek the view of the Law Officers.
By convention, written options of the Law Officers,
unlike other Ministerial papers, are generally made available
to succeeding Administrators.
23. When advice from the Law Officers in included
in correspondence between Ministers, or in papers for the Cabinet
or Ministerial Committees, the conclusions may if necessary be
summarised but, if this done, the complete text of the advice
should be attached.
24. The fact and content of opinions or advice given
by the Law Officers, including the Scottish Law Officers, either
individually or collectively, must not be disclosed outside Government
without their authority.
25. Ministers occasionally become engaged in legal
proceedings primarily in their personal capacities but in circumstances
which may have implications for them in their official positions.
Defamation is an example of an area where proceedings will invariably
raise issues for the Minister's official as well as his private
position. In all such cases they should consult the Law Officers
before consulting their own solicitors, in order to allow the
Law officers to express a view on the handling of the case so
far as the public interest is concerned or, if necessary, to take
charge of the proceedings from the outset.
In criminal proceedings the Law Officers act wholly
independently of the Government. In Civil proceedings a distinction
is to be drawn between proceedings in which the Law Officers are
involved in a representative capacity on behalf of the Government,
and action undertaken by them on behalf of the general community
to enforce the law as an end in itself.
Brown's 2007 version of the Ministerial Code
The Law Officers
2.10 The Law Officers must be consulted in good time
before the Government is committed to critical decisions involving
legal considerations.
2.11 By convention, written opinions of the Law Officers,
unlike other ministerial papers, are generally made available
to succeeding administrators.
2.12 When advice from the Law Officers is included
in correspondence between Ministers, or in papers for the Cabinet
or Ministerial Committees, the conclusions may if necessary be
summarised but, if this is done, the complete text of the advice
should be attached.
2.13 The fact that the Law Officers have advised
or have not advised and the content of their advice must not be
disclosed outside Government without their authority.
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