Attorney General and Law Officers

Introduction

The Attorney General is the chief legal adviser to the Crown and the government of the United Kingdom, and a superintending minister for the prosecution system. The office is one of the oldest in the constitution, dating from at least 1461. The Attorney General is supported by the Solicitor General and together they are known as the Law Officers of the Crown. The Law Officers occupy a distinctive constitutional position: they are government ministers but also have independent functions that require them to act in the public interest rather than in the interests of the government of the day. This dual role creates constitutional tensions that are managed through conventions and institutional arrangements. The Advocate General for Scotland and the Counsel General for Wales perform analogous functions within their respective jurisdictions.

The Law Officers’ Convention

The Law Officers’ Convention is a constitutional convention that governs the provision of legal advice to the government. Under the convention, the content of legal advice given by the Law Officers to the government is confidential and is not disclosed outside government. The convention protects the government’s ability to seek and receive frank legal advice without fear of public exposure. The convention also provides that the government cannot be compelled to disclose Law Officers’ advice in legal proceedings, though the courts have held that the convention is not absolute and that disclosure may be required in the interests of justice. The convention was the subject of significant controversy during the Iraq War (2003) , when the legal advice of the Attorney General (Lord Goldsmith) on the legality of military action was disclosed only partially and after considerable pressure. The Iraq Inquiry (Chilcot Report, 2016) recommended that the government should publish the Attorney General’s advice on the legality of armed conflict in a timely manner. The convention recognises that the Law Officers’ advice to the government is protected by legal professional privilege and by the public interest in the confidentiality of government decision-making.

Legal Advice to Government

The Law Officers provide legal advice to the government on a wide range of matters, including the domestic legal implications of proposed legislation, the compatibility of government actions with international law, the conduct of armed conflict, and the exercise of prerogative powers. The Attorney General’s advice is sought on all draft government bills to ensure they are legally sound and compatible with the European Convention on Human Rights (under section 19 of the Human Rights Act 1998, the responsible minister must make a statement of compatibility). The Law Officers also advise on international law matters, including treaty obligations and the use of force. The Cabinet Office and the Government Legal Department provide legal advice to departments on operational matters, but the most significant legal questions—particularly those involving constitutional law, international law, or major litigation—are referred to the Law Officers. The Law Officers attend Cabinet and Cabinet committee meetings when legal advice is required.

Superintendence of Prosecutions

The Attorney General exercises superintendence over the principal prosecution authorities. The Crown Prosecution Service (CPS) is headed by the Director of Public Prosecutions (DPP) , who is accountable to the Attorney General. The Serious Fraud Office (SFO) is headed by a Director who is also accountable to the Attorney General. The Attorney General’s superintendence does not extend to the day-to-day conduct of individual prosecutions, which is a matter for the independent judgment of prosecutors. The Attorney General may issue guidance to prosecutors, but the final decision to prosecute in individual cases rests with the independent prosecutor. The Attorney General also has statutory powers to take over certain private prosecutions and to enter a nolle prosequi (discontinuance of proceedings). The superintendence relationship ensures that prosecutors are accountable to Parliament through the Attorney General while maintaining operational independence.

Consent to Prosecute

The Attorney General’s consent is required for the prosecution of certain serious offences, including bribery, offences under the Official Secrets Acts, cases of contempt of court, and certain terrorism offences. The requirement for the Attorney General’s consent provides a safeguard against inappropriate or politically motivated prosecutions. The Attorney General must give independent consideration to whether the prosecution is in the public interest, applying the same test that the CPS would apply (the Full Code Test : whether there is sufficient evidence and whether prosecution is in the public interest). The decision on consent is personal to the Attorney General and cannot be delegated. The courts have held that the Attorney General’s decision on consent is reviewable in limited circumstances, but significant deference is given to the Attorney General’s judgment. The Law Officers’ Convention of independence requires that the Attorney General exercise the consent function without regard to government policy or political considerations.

Independent Role

The Attorney General has an independent constitutional role that requires acting in the public interest rather than in the interests of the government. This is most significant in the context of prosecutorial decisions, where the Attorney General must act to ensure that justice is done. The Attorney General also has a role in referring unduly lenient sentences to the Court of Appeal and in bringing contempt of court proceedings. The Attorney General is the guardian of the public interest in the administration of justice, with responsibilities that transcend party politics. The Law Officers’ Convention provides that the Attorney General must act independently in these functions, and that the Prime Minister and other ministers should not seek to influence the Attorney General’s decisions. The House of Commons Justice Committee scrutinises the Attorney General’s performance of these independent functions. The tension between the Attorney General’s ministerial role and independent role is managed through clear institutional separations and the recognition of the Law Officers’ Convention.

The Solicitor General

The Solicitor General is the second Law Officer, supporting the Attorney General and performing specific functions. The Solicitor General is a minister but has a less prominent constitutional role than the Attorney General. The Solicitor General can exercise the Attorney General’s statutory powers in the Attorney General’s absence. The Solicitor General has specific responsibilities for the enforcement of the law on contempt (bringing proceedings for scandalising the court) and for public interest immunity matters. The Solicitor General also answers parliamentary questions on behalf of the Attorney General’s Office and the Law Officers’ Departments. The Advocate General for Scotland is the Law Officer for Scotland, advising the UK government on Scots law. The Counsel General for Wales advises the Welsh Government and participates in Supreme Court proceedings on devolution matters.

Conclusion

The Attorney General and Law Officers occupy a distinctive and constitutionally sensitive position in the UK constitution. As government ministers, they advise the government and are accountable to Parliament. As independent office-holders, they exercise prosecutorial functions and protect the public interest in the administration of justice. The Law Officers’ Convention provides the framework for managing these dual roles, maintaining the confidentiality of legal advice while ensuring that the Law Officers act independently in their prosecutorial and public interest functions. The constitutional role of the Law Officers has been tested in high-profile contexts—including the Iraq War, the prosecution of MPs for expenses fraud, and the handling of complex fraud investigations—but the framework of conventions and statutory duties has proved resilient. The continued effectiveness of the Law Officers’ role depends on the maintenance of the independence of the office and respect for the Law Officers’ Convention.