The Solicitor General spoke to Public Law Wales on the role of the Law Officers on Devolution and Bills
Thank you very much to Public Law Wales for inviting me to speak here tonight. It is my great privilege to be standing here in my capacity as the Solicitor General of England and Wales, and speaking to you, my fellow Welsh members of the legal community. In my speech this evening, I would like to tell you a little bit about the role of the Solicitor-General. In light of my Welsh heritage, I have a particular interest in devolution, so will also discuss briefly the Wales Bill.
The role of the Law Officers
Together, the Attorney General, the Solicitor General and the Advocate General for Scotland are the UK Law Officers. The Office for the Attorney General is an ancient one and much has changed over the years. Legal historians argue about who the first Attorney General was, with some suggesting the role may go back as far as the appointment of Lawrence del Brok in around 1247, whose function was to sue ‘the King’s affairs of his pleas before him’. The first person to actually be called ‘Attorney General’ was John Herbert who was appointed as the King’s principal law officer in 1461.
The Office of Solicitor General or ‘secundarius attornatus’ as it was judicially described, is also an old one and has changed so significantly over the years, that it would be a mistake to think that the role of the “first” Solicitor was, in any meaningful sense, comparable with the role today. It is now generally accepted that the role of a Solicitor General is to support the Attorney General in his various functions and responsibilities. Up until 1983 both the Attorney General and the Solicitor General were able to maintain their right to represent private litigants. It was generally accepted that the role of the Law Officers was primarily that of “leading counsel” who could be called upon by the government to look after the litigation concerning the Crown. This role still exists today but it is now conducted by Treasury Counsel who are appointed by the Attorney General. Equally, up until the early twentieth century the general practice was for the Attorney General not to be a member of Cabinet and this was confirmed in 1889 when a leading treatise on Parliamentary Government made the categorical statement that in England the Attorney General was never admitted to Cabinet. He could, however, attend in an advisory capacity when appropriate.
In 1912, the then Attorney General, Sir Rufus Issacs, was the first ever Attorney General invited to be a member of Cabinet; this was in order to appease him having not been given the Lord Chancellor post. This was significant because all future Attorneys General up to 1928 were also made members of the Cabinet. Since that date no Attorney General or Solicitor General has ever been a member of the Cabinet but the Attorney has attended when required to provide advice on legal and constitutional matters, and has a position on a number of Cabinet Committees.
Some have argued, that by leaving the Cabinet, the role of the Attorney General has lost some of its influence. In reality, the Attorney General has returned to a position of in dependence whilst recognising the need to maintain knowledge of the decisions of Cabinet.
Another significant change came in July 1944 with the introduction of the Law Officers Act. The 1944 Act provided for the exercise of statutory powers by the Solicitor General in place of the Attorney. In other words it allowed the Solicitor General to carry out the functions of the Attorney General only when the Attorney was indisposed or his office was vacant. In 1997 the then Solicitor General, Lord Falconer of Thoroton, introduced a bill which allowed the Solicitor General to carry out all the functions of the Attorney General regardless of whether the Attorney’s office was vacant or if he was indisposed. The Bill received royal assent on the 30 September 1997. Accordingly, when I talk about the functions of the Attorney General I mean my own too. To complete the Law Officer picture I need also to mention the Advocate General for Scotland Lord Keen of Elie QC, who is the UK Law Officer responsible for advising the UK Government on matters of Scots law. In the devolved administrations some of the roles of the law officers are performed by the Lord Advocate in Scotland, the Attorney General for Northern Ireland and the Counsel General in Wales, although not all their powers are the same as those of the Law Officers in England and Wales.
And finally, on this matter, in present circumstances I need to speak briefly about the relationship between parliament and the courts. As the former Attorney General Dominic Grieve said: ‘Parliament has for some time accepted in its own procedures a sub judice rule; that it should not bring up matters in debates, questions or motions which are awaiting adjudication in a court of law. This rule reflects the long-standing comity between the Parliament and the courts which means that each takes care not to intrude on the other’s territory, or to undermine the other’s authority. The overwhelming majority of Parliamentarians are careful to observe this convention.’ This is fundamental to the rule of law, of which I pride myself as a guardian, and if the law is flouted in this area it not only undermines the rule of law but also the independence of the judiciary, thus impeding the operation of the courts and fair trial processes. Were this convention to be breached, as a Law Officer and advisor to Parliament, I would be obliged to advocate a more stringent regulation of what members can say in parliamentary proceedings. And it is in observation of that convention that I will not be speaking to you today about the Article 50 litigation that is currently before the courts.
Welsh Law Officers
Moving on, I will now speak briefly about some other Welsh Law Officers that have preceded me (of which there have been a number). Edward Herbert was the first Welsh Law Officer, and held both the position of the Solicitor General from 1640-1641, and then the Attorney General from 1641-1645. Another worthy of mention, not least because he was also from my hometown of Llanelli in Carmarthenshire, was Frederik Elwyn Jones who held the post of Attorney General from 1964-1970. He also later held the post of Lord Chancellor from 1974-1979. And finally, I will give a mention to Lord Howe of Aberavon, who held the post of Solicitor General from 1970-1972. This was to be only the first of seven posts he held which culminated in the role of Deputy Prime Minister from 1989-1990. Quite the Conservative Statesman.
The role of Law Officers today
The role of the Law Officer is one of the most interesting posts for a lawyer to hold. We have three main roles: as Chief Legal Advisers to the Crown and Government, as the Government Ministers responsible for the Law Officers’ Departments, and as “guardians of the public interest” and a protector of charity. But in addition to this, both the Attorney and I are barristers – and we are therefore entitled to appear in Court as advocates on cases relevant to our role as Law Officers. You may be aware that the Attorney has recently led the Advocacy on the Art 50 litigation before the High Court. I also regularly appear as an advocate in unduly lenient sentence cases, and earlier this year I appeared in a guideline case on the sentencing of terrorism offences.
So as you can see it is a role which includes both ministerial and non-ministerial duties, and the role of giving effect to the constitutional principle of the rule of law. We are essentially the point at which politics and law meet.
And it is in that context that I thought I would make mention of the Wales Bill. Role of Law Officers on Devolution and Bills Law Officers have some clear roles in relation to Bills such as this – namely to give legal advice to UK Government departments on devolution matters, and specifically in relation to our attendance at the Parliamentary Business and Legislation Committee where all Bills are discussed. In addition, we scrutinise all legislation produced by the devolved legislatures in accordance with our role in considering whether to refer to the Supreme Court legislation we deem to be outside competence.
The devolved administrations’ Law Officers also have the ability to refer legislation passed by the devolved legislatures. In that respect they provide a similar function to us. There have been three references of devolved legislation to the Supreme Court. All, interestingly, have concerned Welsh legislation. I am sure you will all be familiar with the litigation in this space. All of the cases have been lost by the referring Law Officer. But this sort of litigation is important in providing clarity around the parameters of the devolution settlements, and in this case paved the way for the Wales Bill which I will now turn to.
Background to the Bill
The UK Government established the Silk Commission following the 2011 Welsh referendum, to set a course for the future of devolution in Wales. The St David’s Day Agreement followed the Commission’s report, and also considered the non-fiscal aspects of the Smith Commission in Scotland that could also be appropriate for Wales. The St David’s Day Agreement identified those recommendations which have political consensus, whilst respecting the key principle that we should only be devolving powers where there is a clear purpose for doing so.
Our manifesto committed to implement the St David’s Day Agreement in full. And that is what the Wales Bill does.
The Wales Bill
The Bill was introduced earlier this year, has already passed successfully through the House of Commons and on Monday last week had its second day of Committee in the House of Lords.
The Bill will implement those elements of the St David’s Day agreement which require legislative changes, and will create a clearer and stronger settlement in Wales which is durable and long-lasting.
In particular the Bill aims to deliver a clearer devolution settlement for Wales by moving to a new reserved powers model. This will provide a clearer separation of powers between what is devolved and what is reserved, enabling the Assembly to legislate on any subject except those specifically reserved to the UK Parliament.
The Bill also devolves important new powers over energy, transport and local government and Assembly elections that can make a real difference to the lives of people in Wales. It will also give the Assembly greater control over its own affairs, including what it calls itself, what size it should be and how its Members are elected. This legislation will have significant implications for the future of devolution.
And of course, to add to these huge changes in devolution, the UK has this year voted to withdraw from the European Union. Good working relationships between Westminster and the Devolved Administrations are now more crucial than ever. In this context, the Prime Minister has committed to full engagement with the Devolved Administrations to get the best possible deal for all parts of our United Kingdom as we leave the EU. I hope I have provided an interesting insight into the work of the Law Officers. I hope you enjoy the rest of your evening, and thank you again for giving me the opportunity to speak to you.