Inquiry launched into whether politicians should be law officers

The House of Lords Constitution Committee will examine whether it is appropriate for ministers to hold roles such as attorney general and solicitor general
Suella Braverman, attorney general. Photo: UK government/Flickr

By Tevye Markson

18 Feb 2022

The House of Lords Constitution Committee has launched an inquiry into the role of law officers and the lord chancellor, questioning whether these top law roles in government should be held by ministers.

The inquiry will examine the extent to which officer holders are able to remain impartial given their position in the executive branch of government and whether their ability to uphold the rule of law and defend the independence of the judiciary is affected.

Law officers are ministers with legal experience appointed by the prime minister to give legal advice to ministers. There are three UK government law officers: the attorney general, the solicitor general and the advocate general.

MPs Suella Braverman and Alex Chalk are currently attorney general and solicitor general respectively, with Lord Stewart of Dirleton QC the advocate general for Scotland. The attorney general also holds the separate office of advocate general for Northern Ireland.

They must sit in one of the Houses of Parliament and are political appointees but, by convention, are expected to have deep knowledge of the law and to have worked in the legal profession.

The inquiry will ask whether it is “appropriate or helpful for the law officers, as government legal advisers, to be politicians serving in government”.

It will also specifically examine the appropriateness of the attorney general, as a member of the government, being involved in decisions about whether to prosecute, and whether the role should be reformed.

The attorney general has responsibility for the Government Legal Department,as well as the Crown Prosecution Service, the Serious Fraud Office and HM Crown Prosecution Service Inspectorate.

They are also the chief legal adviser to the government and the chief law officer in England and Wales.

A limited number of offences – for example, all offences under the Official Secrets Act – cannot be prosecuted without the consent of the attorney general.

The inquiry will also ask if the role of lord chancellor, held by the justice minister (currently Dominic Raab), needs reforming. It will consider whether changes to the role in 2005, which saw several responsibilities transferred elsewhere, have been successful.

The committee is seeking submissions to the inquiry until 18 March.

Why is the role of law officers contentious?

The position of law officer is a hybrid role, located at the intersection of politics and the law, the Institute for Government explains.

Law officers are politicians and ministers but are expected to act as independent guardians of the rule of law and provide impartial legal advice to ministers and government departments.

Concerns have been raised in the past about the dual nature of these roles and whether political considerations could affect the independence of the law officers’ legal advice.

In 2006, the House of Commons Constitutional Affairs Select Committee said "legal decisions in prosecutions and the provision of legal advice should rest with someone who is appointed as a career lawyer and who is not a politician or a member of the government."

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