There are two distinct senses in which one can ask whether the Law Officers’ legal advice is “binding” on the government. The first is whether the legal advice of the Law Officers can be set aside in favour of a legal opinion offered by another lawyer, or whether their view of the law must take precedence within government. The second is whether, in a situation where the Law Officer says a course of action is unlawful, the government can nonetheless properly and constitutionally proceed with it. This post explores these two senses in which we might say legal advice is binding.
Can the Government prefer other legal advice to that of the Law Officers?
The legal advice of the Law Officers is clearly binding in the first sense. Officials, politicians, and former Law Officers themselves regularly use terms like “supreme”, “authoritative”, “the last word”, “final court of appeal” to describe its status. The choice of adjectives reflects the constitutional position that the Law Officers are the chief advisers of the Crown on points of law.
One significant consequence of their official constitutional position is that the opinions of the Law Officers cannot properly be side-stepped in favour of other sources of legal advice. In fact, other sources of legal advice given to the government, whether by Government Legal Department lawyers, external counsel, First Treasury Counsel, are as relevant to the Law Officers’ official task of providing legal advice as the Attorney General wants them to be.
The great British jurist and former Foreign Office legal adviser Sir Gerald Fitzmaurice once posed the hypothetical question of what would happen “when an experienced and fully competent legal adviser has to consult a recently appointed law officer who has never opened a book on international law in his life and is inclined to regard the subject as being beneath any serious lawyer ‘s notice?” The constitutional answer to this hypothetical is that, while one would hope the Law Officers might show due respect to the expertise of other government lawyers, the former’s opinion would be authoritative even were they to eschew all assistance and handle the matter by relying on their own, perhaps limited, experience.
Of course, this is not the only way to structure the relationship between the executive and its legal advisers. A very different structure pertains in countries like the United States, where the President, in his role as chief law executor, has the final say over what the executive branch understands the law to be. The President is entitled to prefer any source of legal advice – or their own legal view – as he sees fit. Where there is a plurality of legal opinions, he can opt for the one he finds most appealing.
These structural differences can have significant practical impacts on the course of executive decision-making. A good example of this more pluralist approach to government lawyering “in action” could be seen during the height of US involvement in the Libyan Civil War. Then President Barack Obama had ordered airstrikes on pro-Gaddafi forces without first seeking congressional approval. The War Powers Resolution provides that if US forces are engaged in “hostilities” for more than 90 days, the President must either cease operations or receive congressional approval to continue them. When congressional approval did not look like it would be forthcoming, the President sought legal advice on whether he had any lawful basis for continuing airstrikes without it.
The President sought legal advice from several sources about whether he could continue to take unilateral action. The head of the Office of Legal Counsel (OLC) and the General Counsel of the Department of Defense reportedly advised the President that the airstrikes in Libya did indeed constitute “hostilities” and that he either had to terminate or scale back the mission, unless he received the requisite congressional authorisation. For context, the OLC is an office within the Department of Justice to which is delegated the US Attorney General’s statutory function of offering legal advice to the President. Generally speaking, it is regarded as the most authoritative source of legal opinion within the federal government.
The President, however, sided with legal advice provided by the White House Counsel, Robert Bauer, and the State Department Legal Advisor, Harold Koh, who advised that the actions in Libya were not at a level of intensity so as to constitute “hostilities” for the purposes of the War Powers Resolution and, therefore, did not implicate its requirement to terminate armed action in the absence of Congress’ approval. This was a politically controversial episode which, in the words of Professor Jack Balkin, invited the “conclusion that from the outset Obama was prospecting for opinions that would tell him that his actions were legal, and once he found them, he felt comfortable in rejecting the opinion of the OLC”.
But while this episode was politically controversial, it was something the President was doubtless constitutionally entitled to do.
The contrast with the UK, and the constitutionally authoritative status of the Law Officer’s advice within government, is stark. Even a Prime Minister backed to the hilt by their Cabinet and enjoying a momentous Commons majority cannot properly disregard an unfavourable Law Officer’s opinion in preference of legal advice whose conclusions may be more politically advantageous, or whose author may be more professionally experienced and regarded. It is hypothetically open to a Prime Minister faced with unhelpful advice to sack and replace their Law Officers, with a view to getting an opinion that is more favourable to their policy agenda. But the reason we do not see this happen in practice is that it’s very likely this course of action would leave the Prime Minister open to severe political criticism, and the critique they are trying to cynically circumvent constitutional constraints.
Prime Minister Theresa May’s failure to secure support for her Brexit deal offers a good case-study of the binding quality of the Law Officer’s advice. As readers will recall, May’s draft Withdrawal Agreement encountered parliamentary resistance partly due to a fear that elements of the Agreement would be immensely difficult to disengage from, if the EU and UK were unable to negotiate a permanent agreement for their prospective relationship. In particular, the Northern Ireland Protocol (or ‘backstop’) caused considerable consternation amongst influential backbenchers in her own party, her Democratic Unionist Party confidence and supply partners, and members of the opposition.
Legal advice given by the Attorney General, Geoffrey Cox QC, in respect of the ‘backstop’ arrangement, gave little reassurance in respect of such concerns. The Attorney General’s interpretation of the Agreement was that if the UK and EU could not agree the terms of a future trade deal which would prevent the backstop from coming into effect, then the UK would have no lawful means of exiting the backstop unilaterally under international law. In March 2019, the government agreed several additional instruments and declarations with the EU to assuage concern that the backstop might endure indefinitely, with a clear hope the Attorney General might alter his legal advice accordingly.
However, the Attorney General stated that, despite these additions, the Protocol on Ireland/Northern Ireland still could not be legally unilaterally terminated by the UK save in very limited circumstances. The Attorney General’s advice on the protocol and its international law implications proved a major obstacle to former Prime Minister Theresa May’s ability to gain support for the agreement. Parliamentarians from the opposition benches, her confidence and supply partners, and her own party all explicitly cited the legal risk identified in the advice as a reason to reject the Agreement, a rejection which had a major hand in ending her premiership.
Political journalists have reported that there were other sources of legal advice to hand that were far more conducive to the Prime Minister’s difficult political position, including from senior barristers in private practice and the Treasury Solicitor himself. Constitutionally speaking, the fact that alternative and more favourable legal advice was available did not matter, nor did the fact this was a “make or break” political moment for the Prime Minister. The Attorney General’s advice was authoritative and what the government had to work with.
The authoritative status of the Law Officers’ advice cannot be chalked up to their personal eminence as legal professionals. The demands of both legal practice and politics mean that it is increasingly rare to see politicians combine a career in parliament with reaching the highest levels of the bar. Several recent Law Officers were junior counsel prior to their appointment. Even Law Officers that do have a high level of professional seniority might not be specialized in the broad sweep of public law, human rights law, and international law that take up the bulk of the office’s advisory functions. There is every likelihood, then, that across a wide range of issues lawyers assisting the Law Officers will have more expertise on a given issue than the Attorney or Solicitor themselves.
Why does the Law Officer’s advice attract this impressive status? Work by scholars like JLJ Edwards, Daintith, Page, McCormick, and Yong agrees that the weight given to the Law Officer’s opinion is linked both to the process by which Law Officers generate advice and to their status as ministers of the Crown.
In practice, the Law Officers invariably take very seriously the expertise and views from a wide range of sources before coming to their own settled view. As they sit at the apex of our system of government lawyering, the Law Officers are in the unique position of being able to mobilize and marshal an impressive array of legal expertise to aid their deliberations. They can rely on expertise in the Government Legal Department, the Foreign and Commonwealth Legal Directorate, and in the Attorney General’s Office. They also tend to work closely with senior lawyers with deep public law expertise such as the Treasury Solicitor and First Treasury Counsel. Finally, Law Officers have been known on occasion to seek the advice of prominent legal academics.
Different occupants of the office will utilise these legal resources in different ways. Those whose professional experience has given them a strong command of the issues in question may take a relatively hands-on approach to drafting and writing legal opinions. For this type of Attorney General, other lawyers’ opinions might serve as helpful research material that is useful for reaching their own conclusions, in the manner akin to an appellate judge reading a bench memo produced by a judicial assistant. Others may restrict themselves to satisfying themselves as to the cogency and reasonableness of the advice submitted to them by a more experienced lawyer, like the First Treasury Counsel. Thus, while different Law Officers will use the resources at their disposal differently, they will all take them seriously.
The second factor associated with the constitutional pre-eminence of the Law Officer’s advice is their political status as ministers of the Crown. As politically responsible lawyers, the work of the Law Officers is widely viewed as enjoying a special quality and status amongst both their ministerial peers and other civil servant government lawyers. The key benefits of having the chief legal adviser as a minister, the argument goes, is that they are more likely to command trust within government circles because they are seen as a team player and a peer; are better able to convey complex legal points in a way that will be understood by their political colleagues; and are better able to offer constructive and practical solutions to overcome legal problems in a manner facilitative of their colleagues’ goals. Those supportive of the dual legal-political status of the Law Officers (myself included) have suggested it is very likely that an apolitical technocratic chief legal adviser would be unable to secure these benefits.
Is the Government bound to follow the substance of the Law Officer’s advice?
It is uncontroversial to say that governments take the opinions of the Law Officers very seriously indeed. Providing evidence to the House of Lords Constitution Committee in 2022, the former Advocate General Lord Keen KC gave an interesting insight into the weight given to the Law Officer’s legal advice within government. He noted he could not think of an instance during his five-year tenure where the government “decided to proceed in the face of express advice that there was no respectable argument to support a particular policy proposal.” Jeremy Wright QC similarly said that during his tenure as Attorney General “there was never a time in four years where I said something would be illegitimate and they went on and did it anyway. Never a time. And it wasn’t even considered… there was never a time when anyone seriously proposed to disregard the legal advice that was being given”. Speaking several decades previously, the then Attorney General Lord Shawcross QC said that one of the “intriguing things about the office of Attorney-General is that he is almost the only officer of State who can go to a meeting of the Cabinet and say, in effect: “You cannot do that”.”
Does the evident seriousness and weight given to the Law Officer’s advice amount to a constitutional convention that it will be followed? In other words, should the Law Officer unequivocally advise a proposed course of action is unlawful, is the government conventionally bound to take heed and change course?
Taking seriously the fact that legal advice says a given course of action is unlawful does not necessarily mean treating that advice as binding. If the government takes advice seriously but does not see it as binding, one can envisage a scenario where it might decide that the imperative of achieving a policy goal can properly take priority over concerns raised about its legality. But if one regards legal advice as binding as a matter of constitutional convention, then one will think it is constitutionally impermissible not to forgo, or alter, one’s plans in order to comply with its conclusions.
I submit that the weight and status afforded to the Law Officer’s advice, combined with the sheer dearth of reported (or leaked) examples of the government proceeding in the face of advice that a policy would be flatly contrary to a statute, regulation, or judicial precedent, suggests there is a self-understanding amongst relevant constitutional actors that there are circumstances in which the Law Officer’s advice is substantively binding. The typical conditions attaching to the existence of a constitutional convention – the presence of a regularity of practice and existence of precedents, a belief amongst actors they are bound to act in a certain way, and a close connection of the practice to a constitutional principle – seem to me to be met in the context where the Law Officer’s unequivocal advice is that a measure is unlawful as a matter of domestic law.
We might formulate the convention as follows: where the Law Officers unequivocally advise that course of action X is unlawful in domestic law, the government is required to avoid such a course of action.
I suggest this convention is linked to, is a manifestation of, the government’s respect for what Professor Finnis calls the “fundamental principle of our constitutional law, and so of the Rule of Law in this country”, namely that “Ministers can neither claim any immunity, by virtue simply of their office, from the rules of common law, nor by any decree or order impose a legal duty (or relieve anyone of a legal duty), except to the extent that an Act of Parliament authorizes them to do so.”
Situations in which this convention becomes relevant are, however, likely to be rare. It is rare for legal advice to be framed by the Law Officers (or lawyers in the Government Legal Department) in such stark terms, especially when it comes to the kind of complex, sensitive, and nationally important questions they advise on. Government lawyers in the UK tend to provide advice through assessing the different legal risks a policy might face, along with their constructive opinion on how these risks can be mitigated or surmounted, all framed by the critical constitutional fact that – uniquely in the field of legal advice – the ‘client’, ie the government, is entitled to ask Parliament to change the law.
In situations where the Attorney General advises that course of action X is supported by a respectable or tenable legal argument but nonetheless carries very serious legal risks in domestic law, on the other hand, the government is constitutionally entitled to proceed with the policy. It is then the responsibility of the relevant Secretary of State or Cabinet, as the case may be, to take responsibility for how they act on foot of the advice and the risks they run.
Is there a similar convention for advice concerning clear breaches of international legal obligations? I think there are reasons for doubting there is. There are too many stark examples which suggest that many leading constitutional actors, including Attorneys General themselves, have over the years accepted the constitutional propriety of the government acting contrary to legal advice that they would be acting in breach the UK’s international legal obligations. Prominent examples here include the government’s handling of the Suez Canal crisis, the government’s response to the European Court of Human Right’s judgment concerning prisoner voting, or the introduction of the Internal Market Bill.
For international law matters, I suggest something along the following lines seems to capture the practice and understanding of the relevant actors over time: the government will normally follow the advice of the Law Officers that a course of action is unlawful in international law by avoiding such action, but it is not constitutionally obliged to do so. Not following the Law Officers’ advice may, depending on the attitude of the Attorney and Solicitor General, give rise to the serious political costs associated with a resignation, and criticism that there was a breach of the Ministerial Code. The threat of a resignation means the government will in the vast majority of cases stick with the tenor of the Law Officers’ advice.
Conor Casey, Senior Lecturer in Public Law & Legal Theory, University of Surrey. Thanks to John Larkin KC, John Finnis KC (Hon), Sir Stephen Laws KC (Hon), Richard Ekins KC (Hon), Dr Paul Scott, and Professor Se-shauna Wheatle for helpful comments and discussions.
