A controversy blew up last week about whether the Government had sought, or should have sought, comprehensive advice about the “legality” of the Northern Ireland Protocol Bill from Sir James Eadie QC (the First Treasury Counsel (Common Law), informally known as the “Treasury devil”). Sam Coates of Sky News had an “exclusive” reporting that Sir James had not been consulted on whether the Government’s plans for the Bill would breach international law. An urgent question in the Commons asked for a statement on requests to Sir James to assess the Government’s proposals. There was speculation, apparently based on unattributed inferences or leaks, about what Sir James’ views on the matter actually were. There was a report that Sir James was “on resignation watch.”
The whole controversy was built on fundamental misunderstandings about both Sir James’ role as the Treasury devil and the correct constitutional position so far as legal advice to government is concerned. If it was a pre-emptive political attempt to taint the process by which the Bill was produced, presumably with a view to facilitating an attack on its substance at a later date, it was clumsy and misconceived.
The indiscretions that allowed the controversy to arise do also seem to provide further, disturbing evidence of a decline in the standards of professionalism in the public service, so far as respect for the confidentiality of legal advice is concerned. Good government is not enhanced if Ministers cannot rely on there being total confidentiality about the legal advice sought and received in the process of policymaking. There are obvious risks – both to accountability mechanisms and to the ability and willingness of government to get the best possible advice – if a perverse assumption is allowed to flourish that advice, once sought from a particular source and given, must always be published and accepted.
Any such assumption also makes the position of legal or other impartial advisers to government very difficult – particularly if accompanied by an insistence that they sign up to the brand of professional vanity that requires them to find it intolerable for their advice not to be accepted. In this case, the most likely basis for the report that Sir James was “on resignation watch” is that it originated in a cynical attempt to produce a dynamic that would lure into the public domain a difference of opinion which (if it ever actually existed) should properly be kept private.
The constitutional position so far as legal advice to government is concerned is clear. The government’s only legal advisers are the Law Officers of the Crown. That, for most purposes, means the Attorney General (with qualifications – in relation to some matters – for Scotland and Northern Ireland).
It is the Law Officers of the Crown who are responsible and politically accountable for all legal advice to government. All other legal advice (whether from civil service lawyers or from lawyers commissioned from “standing counsel” or private practice) is provided by them to government in their capacity as delegates of the Law Officers, or so far only as it is expressly or impliedly adopted by the Law Officers. All official lawyers advising government are expected to accept the Law Officers’ final conclusions on any legal matter in dispute. Where different legal advisers to government reach different views, it is the Law Officers of the Crown and only they, who can authoritatively resolve the differences, or who can overrule advice provided to assist them with which they disagree – subject of course to whatever the courts might subsequently think.
Sir James is an eminent, distinguished and learned lawyer whose views on all sorts of legal matters are bound to be interesting and useful (including, no doubt, his views on matters outside the sphere of his normal professional responsibilities). However, the implication fuelling the controversy – that he is the lawyer to whom the government must pay closest attention in all important legal matters that engage high politics (including even those relating to legislation and public international law) – is just nonsense.
Sir James is not the only “First Treasury Counsel” (as the “(Common Law)” in his formal title, makes clear). Like the others holding similar positions, his role is subordinate to that of the Attorney General and, in his case, is focussed entirely on litigation by or against the government on matters of the sort allocated to the Queen’s Bench Division in England and Wales. That does include litigation involving judicial review in England and Wales (and so, in practice, covers many important and high-profile political cases); but what he is expected to contribute is his vast knowledge and experience of litigation, and to act in relation to that litigation as the Attorney General’s junior or (as the informal title has it) “devil.” Confined to litigation, this is still a demanding role that is bound to keep him more than fully occupied. It involves acting as legal adviser to government on policy matters only so far as that is incidental to his responsibilities as regards litigation. But politics and its interaction with the law are about a lot more more than litigation; and the government has others – in the Office of the Parliamentary Counsel and in the Foreign, Commonwealth and Development Office, for example – who are better placed to assist the Law Officers in giving advice on legislative matters and on public international law, respectively.
In my 37 years involved with the drafting of legislation, I do not remember a single occasion on which I was expressly asked to draft in accordance with the advice of the Treasury devil or subject to his approval.
Very occasionally, the main purpose of a piece of legislation may be to enable government to be sure of winning an anticipated challenge in the courts, or to overturn a case it has lost. In those cases, it is highly likely that careful attention would be paid, when drafting the Bill, to the views of the Treasury devil about whether the proposed legislative solution (which he, of course, would have to defend in court) is likely to work if challenged in litigation. But there can be no reasonable expectation of his being asked to give comprehensive advice in the case of a quite different sort of Bill, like the Northern Ireland Protocol Bill.
What might be expected in the case of such a politically sensitive matter is that the Attorney General would herself, personally, take direct control of the legal advice, pulling together the different legal strands of the problem and resolving any differences between those assisting her. That is what does seem to have happened in this case, though there is – and quite rightly – a long-standing and important constitutional convention that the extent of the personal involvement of the Law Officers in advice on a particular matter, as well as the content of that advice, should be kept completely confidential.
All this, however, is peripheral to the main question of substance and, as suggested above, may be no more than an attempt to taint the substantive issues relating to the Bill with a misconceived attack on the process by which it was produced. A bungled effort to bolster the partisan narrative that presents the government as serial rule breakers is not important. What is really important is political stability and the peace process in Northern Ireland, and the urgent need to find a practical solution to the fact that those are being put at risk by the EU’s approach to the Protocol, which both Lord Trimble and Sir Tony Blair – two of the principal architects of the Belfast/Good Friday agreement – think is undermining the practical operation of that agreement.
Sir Stephen Laws KCB, QC (Hon) is a Senior Fellow of Policy Exchange’s Judicial Power Project and former First Parliamentary Counsel