The role of the Law Officers

Speech by Solicitor General Oliver Heald QC MP to Kent Law School

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
The Rt Hon Sir Oliver Heald KC MP

“It is a pleasure to be speaking here tonight at Kent Law School. May I first thank Professor John Fitzpatrick for inviting me to do so?

“Before discussing the role of the Law Officers, can I start by saying how delighted I was that Kent Law Clinic was joint winner of ‘Best New Student Pro Bono Activity’ in this year’s Attorney General’s pro bono awards for its Public Access to Land Project. Both the Attorney General and I are strong supporters of Pro Bono by students and the professions.

“Kent Law School is a pioneer of student pro bono and a regular winner of the Attorney General’s pro-bono awards. I am delighted this culture of innovation continues and that your Law Clinic is central to the work of the Law School. There is no better way for young lawyers to engage with the profession. I was involved in the early student committees of the Free Representation Unit, or FRU, in the 70s.

“I have fond memories of my involvement with FRU - and not just because it was through FRU I met my future wife. It was an opportunity to use my legal knowledge and skills to help clients who would otherwise not have been represented. It provided valuable experience for me as an advocate, as a lawyer and for life.

“The constitution is full of old and strange jobs and titles, like that of Attorney General, that of Advocate General for Scotland, and my own, Solicitor General. To most people, even those with knowledge of government and the criminal justice system, the role of a Law Officer is something of a mystery. Indeed to most parliamentarians nowadays and even to some ministers the Law Officers are something of a mystery (perhaps even to some Law Officers). So I am delighted to have an opportunity to offer an insight to the offices we hold and the work we do.

“First, a bit of history. The Office of Attorney General is an ancient one, though much 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’. While the first person to be called ‘Attorney General’ was John Herbert who was appointed as the King’s principal law officer in 1461.

“Writing of my own position, Solicitor General, JP Collier published in 1819 a book impertinently called ‘Criticisms of the Bar’. He said:

If, as was shown when speaking of the Attorney General… of all the officers in the gift of the Crown that of the Attorney General is least to be coveted, that of the Solicitor General is perhaps most to be desired. In point of rank the latter is but just inferior to the former and the Solicitor General is relieved from a great part of the weight of public odium which his co-adjudicator is under the necessity of sustaining.

“Over the 200 years since that was written much has changed, though I daresay some recent Attorneys must have felt they have had their share of public odium. The Solicitor General is still essentially the Attorney’s deputy, but since the Law Officers Act of 1997 any function of the Attorney General may be exercised by the Solicitor General, and indeed we share much of the work that falls to be done in the name of the Attorney General. So when I talk of the functions of the Attorney General I mean my own too.

“The Office of Solicitor General itself has a long history. One of my 17th-century predecessors, Sir Francis Bacon, described the role of Solicitor General as ‘one of the painfulest places in the Kingdom’. Yet history also records that Sir Francis made great endeavours to secure appointment to the office of Solicitor General, before later serving as a Law Officer for 10 years, so he must have either liked the pain, or at least thought it worth enduring.

“Some Law Officers have had more reason than others to complain, of course: the most extreme example perhaps was John Cooke, the first Solicitor General of Oliver Cromwell’s English Commonwealth, who in 1649 led for the prosecution in the trial of King of Charles I, only to be rewarded with execution for high treason after the Restoration: the only Law Officer to be hanged, drawn and quartered. So far, at least.

“But what history has bequeathed us is an Attorney General who is a Minister of the Crown and Chief Legal Adviser to the Government, who also exercises a number of functions in the public interest. He superintends the Directors of Public Prosecutions and the Serious Fraud Office, as well as overseeing the Government Legal Service. While the role has evolved much, it has some consistencies.

“The Law Officers’ are members of the government. The Attorney General is a politician, but he is not just a party political minister: he is also a senior lawyer. He is not a member of Cabinet, though he will attend when his advice is required or when matters within his responsibility come up for consideration.

“Indeed, the core function of the Attorney General was and is to make sure that government, that ministers, act lawfully, in accordance with the rule of law. Some of you may find it harder to accept that a politician and member of the government is best placed to ensure that the government acts lawfully in what it does. Some argue that the current office involves too many conflicts of interest. That subject is too wide and deep for me to explore today. The current arrangement, as awkward as it may look on paper, like so many of the eccentricities in our constitution, works because it puts at the heart of government an independent lawyer who is trusted by those he advises because he is one of them.

“In my approach to the role I have been much influenced by a former Solicitor and Attorney General, Peter Rawlinson. Peter Rawlinson was appointed Solicitor General by Harold Macmillan in 1962. He describes in his autobiography, ‘A Price Too High’, how he was invited to become Solicitor General. The Prime Minister honoured him with a ‘scholarly review of mediaeval office holders’, a review which flowed into the 16th and 17th centuries, embraced approvingly the career of Samuel Pepys, and concluded with the admonition that the loyalties of a Law Officer must be first to the Crown, second to Parliament, and only thirdly, almost incidentally, to the administration. I am struck by the order of loyalties that Macmillan described and regard it as one which I, now a Law Officer, will honour for so long as I hold this office.

The third UK Law Officer as I mentioned is the Advocate General for Scotland, Lord Wallace of Tankerness QC. Jim Wallace is responsible for advising the UK government on matters of Scots law. He also plays a key role in relation to legislative procedure, as I shall explain later. And I should for the sake of completeness mention the similar role played in relation to the devolved administrations by the Lord Advocate in Scotland, the Attorney General for Northern Ireland and the Counsel General in Wales.

I think the role of the Attorney General as the government’s Chief Legal Adviser was neatly summed up by the former Attorney General, Lord Mayhew of Twysden, who said:

The Attorney General has a duty to ensure that the Queen’s ministers who act in her name, or purport to act in her name, do act lawfully because it is his duty to help to secure the rule of law, the principle requirement of which is that the government itself acts lawfully.

“This is reinforced by the Ministerial Code issued by the Prime Minister, which requires that the Law Officers must be consulted in good time before the government is committed to critical decisions involving legal considerations.

“Departments will often come to us for advice on how policy can be achieved in a lawful or proper way. By longstanding convention, also recorded in the Ministerial Code, neither the fact that the Law Officers have advised or not, nor the advice that the Law Officers have given, may be disclosed. I cannot give you examples of how, in the few weeks I have been in office, I have, if at all, discharged that role. But let me say that I have not been short of things to do.

“As law students you can well understand why it is vital that a lawyer must keep his clients’ confidences and I would like to say here a bit about our role of Law Officers but also lawyers more generally. Lawyers and the practice of law are all too often cast in a negative light. There is a perception that lawyers can be a hindrance. That we are the men and women who just say no. We are too cautious, too risk adverse, that we stop things getting done. That is not my experience. Both as a lawyer in private practice and now a Law Officer in government, my experience is that lawyers are enablers. A lawyer does not say no lightly. A lawyer says no with intent, so much of our time is not spent just saying ‘No’, but ‘Have you thought about doing it this way?’ which is what all good lawyers should do for their clients.

“A good lawyer understands how things get done. The law provides the framework for this. The concept of the rule of law is contested, and now is not the time for an exposition on it. But the law provides the predictability, the stability, the reliability needed to make decisions and enable investment.

“The best lawyers are creative; they help their clients walk the line, to achieve what they want, the property bought, the contract agreed, the deal done, all within the law. Many lawyers explore that line; the best learn to walk it. In government as lawyers we do that too, but sometimes we go further, we redraw the line. We draft the law.

“The Law Officers have a particular role in the legislative process, considering each Bill as it approaches introduction into Parliament. The Attorney General or the Advocate General are both members of the Cabinet’s Committee which considers the readiness of government Bills and authorises their introduction. In that role the Law Officers assist the government in its search for a lawful and proper way to achieve its policy objectives. Ultimately we may block a Bill if we have unresolved concerns about its legality or propriety. But our ability to ensure that Bills are legal and proper comes from our relationship with the government lawyers who work on Bills and with the Parliamentary Counsel who draft them.

“There are in fact 3 sets of lawyers involved in preparation of a bill. Firstly there are the departmental lawyers who advise their clients on the legal issues with a policy and consider whether legislation is necessary to achieve it. Where possible the government tries to avoid legislating and adding to the regulatory burden on citizens. Secondly there are the Parliamentary Counsel who draft the actual text of the bill, and finally us the Law Officers who I will say more of later.

“The role of Parliamentary Counsel as the drafters of legislation is central to this process. Parliamentary Counsel advises departmental lawyers on matters of legal propriety and technical drafting, and refer matters of concern to the Law Officers if they cannot be resolved. They also act as guardians of the rule of law and they can and often do look to the Law Officers for support. This is a useful way of ensuring that the main legal players in the Bill process cooperate.

“Liaising with Parliamentary Counsel and departmental lawyers serve as a useful guide to the Law Officers to new trends in drafting and legislation, for the drafting of legislation is not immune from innovation, if not fashion. The art of both drafting and legislating is not set in stone, and we do not pursue these activities in a vacuum though you might be forgiven for thinking that; governments legislate to meet or influence events, which throw up their own and new challenges that have to be met.

“However, we need to ensure that the legislative responses to those challenges are appropriate and that the government’s understandable desire to act does not lead to ill considered or inept legislation. Parliamentary Counsel and government lawyers enable us to check this and to offer a guiding hand if we feel that an excitable and excited minister has been touched by a bout of unlawful enthusiasm.

“The volume of legislation over the last 13 years has been relentless; whether it has been of any public benefit is a matter for you to consider. The Law Officers believe if we are to legislate, we should make good law.

“The Law Officers have a more direct role in relation to 3 aspects of proposed legislation, namely compatibility with the European Convention on Human Rights. When a Bill is introduced the minister in charge in each House is required by section 19 of the Human Rights Act 1998 to make a statement that in his or her view the Bill’s provisions are compatible with the Convention rights. Alternatively, if the Minister is not able to provide that personal assurance, then he or she must state that nevertheless the government wishes the House to proceed with the Bill.

“The Law Officers will consider the Human Rights memorandum that departments are required to produce for the Cabinet Committee. The memorandum sets out an analysis of the convention rights that are engaged by a Bill and an assessment of any interferences and justification for them in ECHR terms. The department demonstrates its human rights law reasoning with a view to satisfying the Law Officers, and so the committee and the government, that the route by which the department has come to the conclusion that the Bill is compatible is correct.

“Even if I were able to explain to you what matters we had been consulted on, Bills we had commented on or what advice we had given, that would only give a tiny picture of all the legal work that goes in to the development of government policy and legislation. Many of the tricky legal issues that arise in developing policy never come to the Law Officers. The day-to-day guardians of legality and propriety in all that the government does are the lawyers of the Government Legal Service.

“The Law Officers enjoy a special relationship with the lawyers working in to government departments. This ensures the professional independence and standards of the advice given by them and their staff. Government lawyers may consult the Law Officers if they have doubts about the propriety of any proposed course of conduct in a matter for which they have responsibility. And from this position of strength, government lawyers can advise ministers on the legality of what they want to do, and they work up solutions when what is proposed collides with the constraints imposed by, say, the Human Rights Act, or by our obligations under EU law.

“If you have found what I have said so far interesting you may want to consider becoming a lawyer in the Government Legal Service, they recruit trainees and pupils every year. It is not all though about liaising with the government. The Law Officers also have particular independent public interest functions. Indeed, as is rather grandly set out on the office’s website, the Attorney General historically has the role of ‘the guardian of the rule of law and the public interest’. I will outline just a few.

“This includes a pivotal part in the contempt of court jurisdiction ensuring that trials are not undermined by any media reporting. There is no desire to censor but solely a need to ensure that a case is decided solely on the evidence that is presented in court. The right to free speech and open justice is of fundamental importance but at times can clash with another fundamental right - that to a fair trial. The contempt of court jurisdiction and the Law Officers’ role in overseeing it is borne of an attempt to strike the right balance between these 2 rights.

“This role is increasing determined by statute, in particular the 1981 Contempt of Court Act. The starting point is, as I believe it should be, in favour of open justice protecting fair and accurate contemporaneous, written in good faith, legal reporting. However the publication of material which creates a substantial risk that the course of justice will be seriously impeded or prejudiced will fall foul of the legislation. In that situation it is for the Attorney General to decide whether to instigate proceedings against the publisher.

“There have been high profile examples of this in the past. For instance, you may remember the reporting of the Joanna Yates murder investigation in Bristol last year. There was widespread speculation and copy, across much of the media, about Mr Jefferies who was arrested on suspicion of murder but was later found to be wholly innocent. The coverage in the Sun and Daily Mail newspapers was found to amount to contempt of court as it would have created a substantial risk of serious prejudice if he had been brought to trial.

“The Court looked closely at the issue of impediment to the course of Justice. They decided Mr Jefferies had been vilified to such an extent that potential witnesses might have been discouraged or deterred from coming forward and providing information helpful to Mr Jefferies. The Court ruled the articles published by both papers would have been extremely damaging to Mr Jefferies and his defence. They constituted contempt under the strict liability rule. As the Attorney noted at the time, ‘This prosecution is a reminder to the press that the Contempt of Court Act applies from the time of arrest.’

“Caution, not to say common sense, must come into play when the media are reporting on a case involving an arrested suspect - a suspect who may never be charged. Thankfully prosecutions of this sort are comparatively rare.

“Another power the Attorney exercises as guardian of the public interest is that to refer to the Court of Appeal sentences which he considers to be unduly lenient. This is often thought of as a right for the prosecution, or indeed an interested party, to ‘appeal’ against a lenient sentence, but that is to misunderstand the nature of the power. The power is to provide an exceptional remedy to address those sentences which fall so far below the range of sentences it was reasonable for the judge to impose that they risk damaging public confidence in the criminal justice system.

“The legislation only covers certain serious offences for which a sentence was passed in the Crown Court. It is subject to a strict time limit of 28 days from the day of sentence. We take advice, as you may expect, including from experienced independent counsel, but the decision is ours personally. It is only where we feel that a sentence was significantly outside the appropriate bracket that we will ask the Court of Appeal to intervene. It is then of course a matter for the Court as to whether it decides to increase the sentence.

“My experience over the weeks since I have been in office has been that judges do a difficult job very well. The legislation can be fiendishly complex and even with the benefit of sentencing guidelines passing sentence requires the exercise of careful judgement, taking many different and sometimes competing factors into account. It is only a tiny proportion of the sentences passed in the Crown Court which come to our attention.

“By way of example, in 2011 the sentences passed on 263 offenders were drawn to the attention of the Attorney General. Of those 112 were referred to the Court of Appeal and the Court increased the sentence in 95 cases. Bear in mind that each year somewhere in the region of 80,000 cases are sentenced in the Crown Courts and you will see that we really are talking about a fraction of cases. It is nevertheless important that there is a route by which people are able to draw cases to our attention.

“For my part, doing a job in government so closely associated with the law and the profession which has been such a big part of my life for the last 40 years is a reward. The life of the Law Officers, although circumscribed by limitations that many a politician would not tolerate, brings one to the very centre of power even if those at the centre do not realise it. It is not the dry and fusty world of the Dickensian lawyer’s office, still less the Office of Circumlocution.

“A few weeks ago I swore before the Lord Chief Justice that I would ‘truly minister the Queen’s matters and sue the Queen’s process after the course of the law and after my cunning. For any matter against the Queen where the Queen is a party I will take no wages or fee of any man. I will duly in convenient time speed such matters as any person shall have to do in the law against the Queen, as I may lawfully do, without long delay, tracting or tarrying the Party of his lawful process in that that to me belongeth, and I will be attendant to the Queen’s matters when I shall be called there to.’

“That is the oath Peter Rawlinson took, and that is the oath that Geoffrey Howe, Patrick Mayhew and Nick Lyell took on becoming Solicitor General. As Macmillan told Peter Rawlinson my first duty is to the Crown, secondly to Parliament, and thirdly, to the administration, but if in discharging those duties I can also rebuild the now attenuated links that used to join Parliament and government to the institutions of the Law, I will have achieved something of value.

“Parliamentarians must understand the role and rule of law and recognise that our constitution has reserved a place for the courts. One of my jobs is to help them do that. Government must also not always stand on its rights when there are better and cheaper ways of achieving an outcome.

“Let me give you an example: you may or may not recall that a few years ago a case was brought by a prisoner who claimed that his human rights had been infringed by the prison service for keeping him in a cell where the lavatory was blocked. Rather than allowing the claim to develop, rather than defending the claim at huge public expense, would it not have been more sensible to call a plumber to unblock it? The plumber’s hourly rate of course may have been higher than that of many barristers, but the hours a good deal fewer.

Published 18 October 2012