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The roles of the Lord Chancellor and the Law Officers Contents

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Chapter 3: The rule of law—Government actors

90.There are many in the Government with a responsibility for the rule of law. Dr Klearchos A. Kyriakides, Senior Visiting Fellow, School of Law, Cyprus Campus, University of Central Lancashire, described as a “phalanx of guardians”:

• HM the King127
• the Prime Minister
• the Lord Chancellor
• the Law Officers
• the Treasury Solicitor, plus the other government lawyers
• First Parliamentary Counsel
• the Director General, Propriety and Ethics, Cabinet Office
• the Chair of the Committee on Standards in Public Life.128

91.Additionally, as discussed in chapter 2, all ministers have a duty to comply with the law under the Ministerial Code. Those who are regulated lawyers are also bound by their relevant professional ethical standards.129

92.Sir Richard Heaton former Permanent Secretary, Ministry of Justice, and Warden, Robinson College, University of Cambridge expanded on this list:

“It is not just the job of Ministers to protect the rule of law … If it is down to one person to heroically defend the rule of law, you are in deep trouble. It is the job of everyone to mainstream the rule of law.”130

93.While the duty to uphold the rule of law in Government is widespread, the Lord Chancellor and the Law Officer have special responsibilities.

Lord Chancellor: rule of law duties

A narrow or wide conception?

94.In addition to the Lord Chancellor’s rather gnomic “existing constitutional role in relation to” the rule of law, which they must “respect”, they have specific duties under the Lord Chancellor’s statutory oath to “defend the independence of the judiciary” and “ensure the provision of resources for the efficient and effective support of the courts.”131 The duty to uphold the independence of the judiciary is shared with all other ministers and “all with responsibility for matters relating to the judiciary or otherwise to the administration of justice,” according to section 3 of the CRA.132 The Ministry of Justice drew attention to the distinction between the Lord Chancellor’s duty to “defend” the independence of the judiciary and that of others to “uphold” it.133 So what is the Lord Chancellor’s actual role?

95.Professor Graham Gee, Head of School and Professor of Public Law, School of Law, University of Sheffield, described two rival views of the Lord Chancellor’s responsibilities: a “departmental” and a “cross-government” view. The first saw the responsibility as “largely co-extensive with the office’s statutory duties to defend judicial independence and to ensure an efficient and effective court system.” The second encompassed a duty to ensure the rule of law was upheld in the Cabinet and across the Government. The second view included a duty to advise ministers on the rule of law implications of policies, with the implication that the Lord Chancellor should intervene (and if necessary, resign) if ministers pursued action inconsistent with the rule of law. This view might include a responsibility to uphold constitutional principles, beyond simply the rule of law.134 Professor Gee favoured the first view, arguing that the post-2005 office was not set up to fulfil such a function.

96.Dr Patrick O’Brien, Senior Lecturer in Law, School of Law, Oxford Brookes University, raised difficulties a Lord Chancellor would have, under an expansive view of both the rule of law and the Lord Chancellor’s role, in reconciling that with their responsibility to support party policy. He warned that, if the Lord Chancellor became the “bad news fairy for everything” their role would be “eviscerated”.135

97.Sir Richard Heaton thought the Lord Chancellor’s “main” rule of law duty was to maintain a functioning justice system, including defending judicial independence. His view was that ensuring Government compliance with the law was more the responsibility of the Attorney General.136

98.Others took a more expansive view. Lord Judge thought that the main responsibility of the Lord Chancellor was to express concerns to Cabinet colleagues when the rule of law was threatened.137 Lord Thomas of Cwmgiedd described this as the “very essence of the role”.138 The current Lord Chief Justice, Lord Burnett of Maldon, also thought there was an obligation on the Lord Chancellor sometimes to “say no to colleagues in Cabinet.”139

99.The former Lord Chancellors we heard from also favoured a more expansive conception. Jack Straw argued that the Lord Chancellor should “educate his or her colleagues about the importance of the rule of law” and explain to them that, although ministers might find certain court rulings frustrating, “that is not a reason to attack the judges”.140 David Gauke and Lord Clarke of Nottingham thought that understanding that the law applied equally to everyone and that “the Government must comply with the law” were important aspects of the role. 141

100.Lord Mackay of Clashfern drew a distinction between the roles of the Lord Chancellor and the Attorney General:

“the Lord Chancellor has the responsibility of bringing to the notice of the Cabinet any question that he knows of in the Administration that is a question of law. Whether or not it is a breach of the rule of law will certainly be such a question. If it is raised, it is not his business to advise on it. It is his business to advise the Cabinet to take the legal advice … from the Attorney-General.”142

101.In our 2014 report we concluded that the Lord Chancellor had a special role beyond the policy remit of his or her department, which required them to “seek to ensure that the rule of law is upheld with Cabinet and across Government,” and that the Cabinet Manual and Ministerial Code should be revised accordingly.143

102.The Lord Chancellor should fulfil a wider, cross-departmental, role in defending the rule of law and educating his or her colleagues on its importance. Historically, the office has fulfilled that role, there is already a statutory duty and, unlike the Law Officers, the Lord Chancellor is a full member of the Cabinet. We note that none of the former Lord Chancellors we spoke to expressed any qualms about performing a wider role.

103.Options for enhancing this role are discussed elsewhere in this report.

Lord Chancellor: protection of the judiciary

104.We have previously concluded that judicial independence is “a vital element of the United Kingdom’s uncodified constitution.”144 The responsibility of the Lord Chancellor in respect of the judiciary is uncontested. Partly, this stems from their ministerial functions as head of the government department with responsibility for the courts. In this function, as set out in the Lord Chancellor’s oath,145 there is a responsibility to make sure the courts and judiciary are properly funded and well-run.

105.Section 3 of the CRA elaborates on the Lord Chancellor’s duty. The Lord Chancellor must have regard to:

• the need to defend judicial independence,
• the need for the judiciary to have the support necessary to enable them to exercise their functions, and
• the need for the public interest in regard to matters relating to the judiciary or otherwise to the administration of justice to be properly represented in decisions affecting those matters.146

106.We discuss some aspects of this duty—funding and judicial appointments—in chapter 4. Here, we look more generally at judicial independence and at the Lord Chancellor’s specific role in defending the judiciary.

107.In general, our witnesses thought judicial independence had increased following the CRA. Professor Robert Hazell, Professor of Government and the Constitution, The Constitution Unit, University College London, and Professor Kate Malleson, Professor of Law, Queen Mary University of London, considered, on the basis of research conducted between 2011 and 2014, that both judicial accountability and independence had emerged stronger following the reforms. They argued that there were now more leadership roles in the judiciary, that the senior judiciary was more “media wise” than before and that rather than relying solely on the Lord Chancellor as the “buckle between the judiciary and the Government” there were now multiple channels of communication, including the Attorney General. They warned against “selective memories” from the judiciary about the role played by pre-2005 Lord Chancellors. They thought that judicial scepticism about the protection received from post-2005 Lord Chancellors stemmed as much from funding cuts following the 2007 financial crisis as from the 2005 constitutional changes.147

108.Dr O’Brien thought it was part of the design of the CRA that the guardians of judicial independence were “diffuse and multiple”. He thought culture and practice were more important than rules for sustaining independence.148 He described the core indicators of judicial independence—apolitical appointments, transfer of personnel and security of tenure—as “rock solid”.149 Professor Gee made a similar point and thought judicial decision-making remained robust.150

109.Lord Burnett of Maldon noted that the wording of section 3, to “defend” the independence of the judiciary, “is something that suggests activity; it is not a passive word.”151 He told us that he had occasionally raised issues relating to judicial independence with the various Lord Chancellors with whom he had worked and had regular meetings with others, including the Prime Minister and the Cabinet Secretary.152 Lord Judge and Lord Thomas of Cwmgiedd described a similar arrangement from their time as Lord Chief Justice.153

110.Lord Chief Justices are able to raise concerns, both directly to the Lord Chancellor and publicly, including through comment to this Committee. But, as Lord Burnett alluded to, what is important is what the Government—primarily the Lord Chancellor—does about it. One recent incident, in particular, concerned many witnesses.

‘Enemies of the People’

111.On 4 November 2016, following a High Court judgment requiring the Government to obtain an Act of Parliament to trigger the UK’s withdrawal from the European Union,154 the Daily Mail published an article personally criticising the judges involved, bearing the headline ‘Enemies of the People’.155 The slow response of the then Lord Chancellor, Rt Hon Elizabeth Truss MP, was criticised by many at the time.

112.Lord Judge told us of his disquiet:

“when the newspapers decided that the judges were the enemy of the people, I think an old-fashioned Lord Chancellor would have been on the television news, or certainly in Parliament, asserting what it took a very long time for the new Lord Chancellor to do: namely, saying this was a totally inappropriate observation about the judges who were doing their duties.”156

113.In 2017 we asked Elizabeth Truss about her response. She argued that senior judges were able to speak publicly about what they did and appeared to criticise their reticence to do so. She added:

“Where perhaps I might respectfully disagree with some who have asked me to condemn what the press are writing, is that I think it is dangerous for a government Minister to say this is an acceptable headline and this is not. I am a huge believer in the independence of the judiciary; I am also a very strong believer in a free press and the value it has in our society.”157

114.A few weeks after that session we heard from Lord Thomas of Cwmgiedd, then Lord Chief Justice and one of the three judges criticised in the Daily Mail article. He accepted the importance of press freedom and that criticism of judicial findings was “very healthy”, but drew a distinction between criticism and abuse. He questioned the then Lord Chancellor’s suggestion that judges should speak out:

“It cannot be right for us to have entered into a discussion at that time. How could I? I had made the judgment. Lord Neuberger could not say anything as he was going to hear the appeal, so there was nothing a judge could do. Moreover, we had fought hard, as I just said, to keep out of Brexit and I cannot see how we could have said anything without immediately plunging ourselves into a political controversy.”158

115.He concluded:

“I regret to have to criticise her as severely as I have, but to my mind she is completely and absolutely wrong about this, as I have said, and I am very disappointed. I understand what the pressures were in November [2016], but she has taken a position that is constitutionally absolutely wrong.”159

116.We asked Sir Richard Heaton, Permanent Secretary of the Ministry of Justice at the time, about the incident. He described it as “a rather spectacular example of the general duty” to defend independence, which was to “make sure that the judges are understood, defended, looked after and not roundly abused” and that their needs and vulnerabilities are understood within the Government. Where judges suffer abuse, rather than criticism, the Lord Chancellor’s job was to ensure they were properly defended and looked after.160 He added that, whether or not the response was appropriate, the perceived failure to act was damaging.161

117.Dr O’Brien argued that the judiciary did not need protection from criticism and that those who were sensitive to criticism were not well suited to being a judge. Nonetheless he thought the ‘Enemies of the People’ incident was a threat to judicial independence because there was a reasonable chance that some judges might have “felt unable to conduct themselves and conduct their jobs without fear or favour if people were showing up in courtrooms and calling them enemies of the people.”162 Professor Gee was more sympathetic to the Lord Chancellor, suggesting that the article did not trigger the section 3 duty and that a press release defending the judiciary on the day of the article was unnecessary.163

118.Dr O’Brien noted that the subsequent reactions to the Supreme Court judgments in Miller 1 and Miller 2164 were more muted.165 Indeed, Elizabeth Truss published a statement very shortly after the Supreme Court’s judgment in Miller 1 was issued, calling the justices “people of integrity and impartiality.”166

119.Lord Reed of Allermuir, President of the Supreme Court, accepted that judges need to be resilient, and noted that resilience was one of the criteria for appointment as President or Deputy President of the Supreme Court (though not for other members of the court).167 He added that he had made an effort recently to provide more explanation in judgments and “to spell out what the constitutional relationships are … That has been a response to criticism, because it was evident that people did not understand our role.”168

120.In the same exchange, Lord Hodge, Deputy President of the Supreme Court, added “it is very important that we do not enter the fray in the face of political criticism, and we leave it to the Lord Chancellor, if necessary, to defend us in the context of defending the rule of law.”169

121.Defending the judiciary against unfair, personal or threatening abuse is a core part of the Lord Chancellor’s role. While criticism of the content of a judgment is acceptable, targeted personal criticism which unfairly impugns a judge’s impartiality or inflames public sentiment against the judiciary is not. In such cases, a Lord Chancellor must intervene promptly and publicly.

122.The ‘Enemies of the People’ incident, and the then Lord Chancellor’s response to it, at the very least caused alarm within the judiciary and damaged trust. For the judiciary to feel secure in its independence, and the performance of its duty to decide cases without fear or favour, it needs the support of a Lord Chancellor who is willing to defend it. This incident illustrates the importance of a Lord Chancellor having sufficient authority within the Government to perform their role.

123.The Lord Chief Justice and other senior members of the judiciary have a part to play in explaining to the public, in general terms, their role and constitutional position. It would not be appropriate, however, for them directly to address criticism, made in the heat of political controversy, of their judgments on the application of the law. That is the Lord Chancellor’s responsibility.

Law Officers

124.The responsibilities of the Law Officers—the Attorney General, the Solicitor General and the Advocate General for Scotland—touch on the rule of law in various ways. For instance, superintendence of the prosecution services or bringing contempt of court proceedings can ensure that the legal system operates fairly and in an orderly way. However, this section focuses on their role as legal advisers to, and lawyers in, the Government. Dominic Raab described this role as a “core function that supports all ministers to act lawfully and in accordance with the rule of law.”170

125.The Ministerial Code requires ministers to consult the Law Officers “in good time before the Government is committed to critical decisions involving legal considerations.”171 Therefore, on any issue of importance, the Law Officers ought to have had an opportunity to assert the importance of the rule of law through advice given on that issue. As we stated in our 2008 report on the office of Attorney General, “the provision of legal advice to the Government is important in giving practical effect to the constitutional principle of the rule of law.”172

126.The Government’s Guide to Making Legislation explains that the Attorney General’s Office and the Legal Secretariat to the Advocate General for Scotland:

“advise the Law Officers where bills raise issues of particular legal difficulty, disagreement or importance. The also advise on retrospectivity, early commencement, Crown immunity, devolution or ECHR compatibility and will work with departments and relevant centres of excellence when considering such legal issues. They advise on legal issues memorandum and will consider draft memorandums before consideration by PBL Committee ahead of introduction.”173

127.The Attorney General and Advocate General, as members of the Parliamentary Business and Legislation Committee, are well-placed to ensure that the rule of law is considered before a bill is introduced. Additionally, at the time of writing, the Attorney General attends the National Security Council, the National Security Council (Europe) and the Home Affairs Committee. The current Lord Chancellor also attends those Committees, but possibly in his capacity as Deputy Prime Minister.174

Law Officers: a wider rule of law function?

128.The 2005 changes removed the need for the Lord Chancellor to be legally qualified. The Law Officers are therefore the only members of the Government who are necessarily lawyers. It might be expected that they would take a more prominent role in general rule of law issues.

129.Lord Thomas of Cwmgiedd wondered whether a non-lawyer Lord Chancellor would be listened to on rule of law issues and thought that “the position of the Attorney General becomes much more critical”175 while Dr McCormick thought the Law Officers were now potentially the “only formal bridge between the Executive and the judiciary.”176

130.Generally, though, we heard little evidence to suggest that the Law Officers had taken on significantly wider responsibility. Lord Mackay of Clashfern (quoted above), perhaps relying on his experience as a pre-2005 Lord Chancellor, contended that the role of Lord Chancellor was to raise issues in Cabinet about the rule of law, but that it was then the role of the Law Officers to advise on the matter,177 while Dominic Grieve told us:

“The role of the law officers has historically been to ensure that the Government get legal advice so that they can pursue their policies lawfully. It has not historically been the role of the law officers to be the guardians of the rule of law within government.”178

131.But he added: “it may be right to say that that responsibility has at times fallen more on law officers, if the Lord Chancellor has been unable or unwilling to understand the issues.”179

132.Sir Jonathan Jones was also equivocal: “Maybe if the Lord Chancellor is not a lawyer and the Attorney-General is the only legal Minister, as it were, that makes a difference, but you would have to ask them. I do not think that of itself is a huge factor.”180

133.Though the evidence was unclear on the role performed by recent Law Officers on wider rule of law issues, it seems helpful for any member of the Government with gravitas and legal authority to raise concerns when they arise. In our 2014 report we concluded that the changes to the Lord Chancellor’s role had made the Law Officers’ more important and recommended that the Attorney General should attend Cabinet and be properly resourced in order to fulfil this enhanced function.181

134.All those in Government have a duty to defend the rule of law and should be mindful of the fundamental tenets on which it rests, as described in paragraph 41. This applies especially to those with legal authority. In our view, the Law Officers have a wider role in defending the rule of law when issues arise, alongside the Lord Chancellor.

A respectable legal argument?

135.We concluded in earlier chapters that the Government should not knowingly pursue an unlawful course of action. In some cases the lawfulness of an action is not clear in advance and the Government must rely on the advice of Government lawyers, including the Law Officers, in deciding whether to proceed. In doing so, the Government must weigh the desirability of its proposed policy against the likelihood of legal challenge (successful or unsuccessful).

136.Lord Keen of Elie referred to the concept of a “respectable” legal argument. He said that the role of the Law Officers was to ensure that the Government’s policy could be implemented, while reminding their colleagues of “their obligations to adhere to the rule of law.” He noted that, in doing so, there were “times when we come very close to the boundaries … when the Law Officers will advise that a particular course of action is ‘respectable’. I have to observe that that is a fairly low standard.”182

137.When discussing his position on the United Kingdom Internal Market Bill, Lord Keen explained that he had felt there was a respectable argument that Part 5 of the Bill merely had the potential to breach international law, one which could not be sustained once Brandon Lewis had stated that the Bill did breach international law.183

138.The concept of a ‘respectable legal argument’ is found in the Government Legal Department’s guidance to government lawyers on legal risk. A version of this guidance, in operation during preparation of the United Kingdom Internal Market Bill and when Lord Keen spoke to us in April 2022, was published in 2018 following a request under the Freedom of Information Act 2000.184

139.The 2015 guidance stated that risk should be considered against:

• the likelihood of a legal challenge being brought
• the likelihood of that challenge being successful, and
• the impact and consequences of that challenge, whether successful or not, including possible mitigations to reduce risks and impacts.

140.The guidance set out a ‘traffic light’ system, accompanied by percentages, for indicating the risk for each of the bullets above and stated both that “Ministers may legitimately decide to proceed with a proposal even if it carries a high risk (70 per cent +)” and:

“If there is no respectable legal argument that we could put to the Court, then you will need to advise that the proposed action is unlawful. This is likely to be highly exceptional and if you are in this territory you should refer the matter to your line manager and the Legal Director before you advise (a respectable legal argument is a credible argument the Government could properly run in court).”185

141.An updated version was published on 2 August 2022.186 There was speculation at the time that the revised guidance would forbid Government lawyers from advising a course of action was unlawful.187 The new guidance does not go as far as that but expands upon the need for lawyers to provide solutions to legal obstacles. The then Attorney General, Suella Braverman, elaborated in a series of tweets that Government lawyers were “too cautious in their advice and this has hampered ministerial policy objectives needlessly,” the change was intended to move away from the “‘computer says no’ approach”, to encourage a “solutions-based approach and use innovative legal thinking” and to “instil a ‘private sector’ approach to client service.”188 It is unclear whether the guidance has had a chilling effect on the willingness of Government lawyers to advise that a course of action is unlawful.

142.Witnesses such as David Gauke, Dominic Grieve and Lord Garnier, former Solicitor General for England and Wales, Attorney General’s Office (2010–12), thought the ‘respectable legal argument threshold’ was appropriate, if adhered to.189 Lord Mackay thought otherwise:

“the law officers’ job is to be convinced about what the law is: what is the right answer to this legal question? You know as well as I do that lawyers do not always agree with one another, but I think that it is the job of the Attorney-General to formulate, with help, if necessary, the correct view of what the present law is on the subject.”190

143.Dr Ben Yong has considered this issue in a paper published by the Constitution Society. He noted that lawyers were, in 2013 when his paper was published, involved in policy development at an earlier stage than previously, and took a more proactive approach.191 This shift in practice has been accompanied by a change in the way advice is provided, from the sort of ‘judgment’ described by Lord Mackay, delivered when policy was fairly well developed, to the risk-based approached reflected in the guidance described above.192 Part of the reason was the pervasiveness of law in Government business. He concluded:

“law is now so much a part of the business of government that lawyers must be involved. However, the pervasiveness of law also means that—perhaps paradoxically—government business becomes more problematic and uncertain; and so government lawyers in advising clients now see themselves as managing risk.”193

144.A risk-based approach may be appropriate when a legally uncertain course of action can be tested in the courts. The impact of an adverse judgment, or merely the need to defend a case, can be weighed against the expected benefits of a proposed policy. Where legal action is unlikely or impossible, as in the case of a decision to authorise the use of armed force, the practical legal risk is less tangible, but the political and moral impact of the decision is great. The Attorney General’s guidance envisages that considerations other than strict legal risk will be taken into account when ministers decide upon a course of action:

“Legal risk is one, but not the only, type of risk that [ministers] will want to consider. The fact that something is judged to involve high legal risk does not mean it cannot or should not be taken. For example, something that is very high risk may have little or no impact and, equally, something low risk could have a major impact. Only if no respectable legal argument can be put to a court should it be advised as being unlawful. This will be rare.”194

145.Nonetheless, in the case of armed conflict, legal certainty is important for the public and the military. Lord Mackay, speaking about the publication of legal advice, said:

“Certainly in relation to the question of conflict, it is important because, apart from anything else, senior military people have to know that what they are doing is lawful; otherwise, they might be in serious trouble, so they are entitled to insist.”195

146.In an earlier inquiry, Rt Hon Lord Goldsmith KC, then Attorney General, discussing his advice on the legality of the 2003 invasion of Iraq, told us:

“[the armed services] need clarity about whether what we are asking them to do is lawful, yes or no. You said a moment ago that some of these questions are difficult. Sometimes, it is absolutely right, they are difficult. We have to reach a judgment. Something cannot be a little bit lawful, any more than you can be a little bit pregnant; it has to be yes or no, and the Armed Services are entitled to a clear answer to that question and they do not need to read long, legal advices and then decide as they are, as it were, metaphorically being asked to go over the top of the trenches whether they agree with this advice or that advice.”196

147.The existence of a “respectable legal argument” as set out in the guidance and elaborated by the then Attorney General, Rt Hon Suella Braverman KC MP, could sometimes represent a very low threshold for authorising legally uncertain action. While it may be conceptually correct that an action is not “unlawful” until tested by the courts or where no legal justification can be found, acting on such an uncertain basis is dubious practice and contrary to the rule of law. The concept may provide a helpful framework for the provision of advice by Government lawyers but a decision by ministers to act must not be based solely on a calculation of legal inconvenience. An alternative framework for assessing legal risk might be to do so in terms of a “necessary degree of confidence”, as recently exemplified in the Lord Advocate’s reference to the Supreme Court on a Scottish Independence Referendum Bill.197

148.The validity of the “respectable legal argument” threshold itself depends on an uncertain threshold in the Attorney General’s guidance: the level at which an argument becomes “respectable”. The guidance explains that this is an argument that can be properly put before a court, but this may be a subjective judgement. It also refers to an absence of such arguments as being “rare” or “exceptional”: it is unclear whether this suggests the threshold is so low that an argument will almost always be found or whether the Government would not expect frequently to be contemplating legally dubious action. While the “respectable legal argument” threshold may be justified in some circumstances of genuine legal uncertainty we are concerned that the threshold as currently set out in the guidance could sometimes be used purely for the convenience of the Government. Public confidence in the Government’s commitment to the rule of law demands that any threshold is meaningful and aligns with an ethos of genuinely seeking to comply with the law.

149.In the case of decisions to authorise armed conflict, greater certainty is required. The existence of a merely “respectable” argument in this context is a fig leaf, and risks undermining the trust of the public and the military.

Publication of advice

150.Law Officers’ advice is covered by legal professional privilege and, as such, is not normally disclosed. This is often referred to as the “Law Officers convention.”

151.The Ministerial Code states:

“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.”198

152.Nonetheless, advice has occasionally been published. Notable examples are Lord Goldsmith’s advice on the legality of the Iraq War in 2003 and the advice of Rt Hon Sir Geoffrey Cox KC MP on the legal effects of the Northern Ireland Protocol in 2018.199 The former was released on 28 April 2005 following a leak and a series of requests under the Freedom of Information Act 2000. An earlier draft of the advice was subsequently declassified and published as part of the Iraq Inquiry, chaired by Sir John Chilcot.200 The latter was published following the agreement of motions in the House of Commons on 13 November 2018 and 4 December 2018.201

153.Some witnesses favoured more routine publication of Law Officers’ advice. Lord Mackay thought the public should be trusted with the information, particularly in relation to military conflict.202 Dr Kyriakides also thought “the Law Officers convention and [legal professional privilege] should be automatically waived to enable the Law Officers to enlighten the people, to advise Parliament and to enable Parliamentarians to reach informed decisions.”203 But in general witnesses were cautious.204

154.Dr McCormick referred to the work of Professor Gabrielle Appleby, who suggested, in an Australian context, that advice should be disclosed when a law officer is unsure of the constitutional validity of a bill or where Parliament has to hold the Government to account on a matter of national importance.205 Dr Casey thought a threshold for publication could be set and that it was justified in “premiership-wrecking” cases, where “the decisions involve issues of import to nearly everyone on the island.”206

155.Sir Jonathan Jones and Sir Richard Heaton opposed routinely publishing the full advice but supported publishing a statement setting out the legal arguments and the legal basis on which the Government was acting. Sir Jonathan noted that in doing so it would be necessary “that the explanation being given is an honest assessment and is consistent with the advice that is being given.”207 Both he and Sir Richard thought that military conflict might be a case where fuller publication was warranted. They both thought it was important that the Government could rely on confidential advice when litigation was a prospect. Sir Richard noted: “if it is not a case likely to be litigated, that might be a factor contributing to waiver of privilege.”208

156.On balance, we do not favour the routine publication of Law Officers’ advice. Doing so would infringe on legal professional privilege and risk undermining the Government’s position should a matter reach court. This is consistent with the rule of law as fairness in legal proceedings is a fundamental part of it. In exceptional cases of national importance, especially where litigation is unlikely, there is a stronger case for publishing advice, either in full or in summary. Doing so would enhance Parliament’s ability to scrutinise the Government’s proposed actions and public trust in its adherence to the rule of law. It is difficult to codify the situations when there should be a presumption of publication but decisions to use armed force are perhaps the clearest area where publication is in the public interest. The Government should consider amending the Ministerial Code accordingly.

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