The following Answer to an Urgent Question was given in the House of Commons on Thursday 23 January.
“The Attorney General’s Office has an established and rigorous process for identifying and dealing with conflicts, and potential conflicts, that arise from the law officers’ past practice. That process predates the appointment of the Attorney-General and sits against the backdrop of every lawyer’s professional obligation to be alert to, and to actively manage, any situation that might give rise to a potential or actual conflict. Learned Members of this House will keenly appreciate the importance that all lawyers place on that obligation.
In identifying conflicts or potential conflicts, the Attorney General’s Office adopts a cautious and ‘beyond reproach’ threshold to any conflicts or potential conflicts. My department works with the Government Legal Department, the Foreign, Commonwealth and Development Office, which oversees international litigation on behalf of the Government, the Crown Prosecution Service and the Serious Fraud Office to revise and augment the list of conflicts identified.
Once the conflicts have been ascertained and a set of actions identified for each conflict, the Attorney General’s Office takes steps to ensure that the law officer is appropriately limited in their involvement on matters related to the relevant area of government policy or related litigation. The list is kept under review and amended—for example, when new government policies or litigation emerge. In situations where one law officer is conflicted, another law officer is asked to act in their place.
The law officers’ convention is an important principle —enshrined in Erskine May and the Ministerial Code and upheld by successive Administrations—that preserves the ability of government to receive full and frank legal advice from its legal advisers in confidence. I am therefore unable to comment on the specific details of legal advice provided by the law officers, other than to note that of course decisions on policy are taken by the relevant Secretary of State, as has been the case under successive Governments. That process sits alongside the system relating to ministerial interests, overseen by the Prime Minister’s independent adviser on ministerial standards, who was provided with the Attorney-General’s list of conflicts following his appointment. I can reassure the House that the Attorney General’s Office will continue to apply the most rigorous standards in its conflicts process”.
My Lords, in the other place, the Solicitor-General said that there was a rigorous system for managing conflicts of interest, but she did not say what she meant by a conflict of interest or who decided when one existed; nor did she say whether, because of his work for previous clients, the noble and learned Lord the Attorney-General has in fact recused himself from personally giving advice to the Government on any current issue. Policy Exchange’s paper has comprehensively shown that none of this involves any breach either of legal privilege or of convention, so please may we have some answers to these questions? What precise definition of an actual or potential conflict of interest is used by the Attorney-General’s Office and who decides when one exists? On what matters has the noble and learned Lord the Attorney-General recused himself from personally advising Ministers?
My Lords, it is vital that the public are reassured that the highest standards of propriety are applied by my department, and I welcome the opportunity to answer questions today. As the House will be aware, I am constrained by the law officers’ convention, which prohibits me identifying particular instances in which law officer advice has been sought, even by implication. But I hope that reassurance can be found in the description of the rigorous system for managing conflicts provided by the Solicitor-General in the other place.
May I make it plain that if ever there is or will be reasonable doubt as to whether a law officer should be recused, my department will always err on the side of caution. Compliance with that process has led me to recuse myself from certain matters. As I said, the convention precludes me identifying in those instances, because to do so would inevitably reveal the issues on which advice has been sought. I can assure the House that recusals have no material impact on my department’s work. Where one law officer is conflicted, another is asked to act instead, and I am fortunate to have the support of a Solicitor-General and an Advocate-General for Scotland with highly successful careers in law.
My Lords, two years ago, the Constitution Committee of which I was a member concluded that the law officers’ convention not to disclose advice was based upon legal professional privilege and the possibility of future litigation. With the Diego Garcia 61 matter, which has been in the press, the conflict of interest is so obvious that I am sure that the noble and learned Lord will not have advised on the special permission to permit their entry into the UK when he has acted professionally for them in private practice. Legal privilege in future litigation will not be applicable if he simply informs the House that the issue did not cross his desk. I ask him to do so.
I thank the noble Lord for his question. The law officers’ convention is not a convenient rock for law officers to hide behind; it is an essential principle that allows law officers to properly discharge their functions by providing legal advice to the Prime Minister and to government, and for that advice and the contents of that advice not to be revealed, because to do so would fundamentally undermine the efficacy of our work. I understand the basis of the noble Lord’s question, but I do not think I can properly answer that question directly, save to reiterate that we have in place a rigorous process for the identification and management of conflicts.
My Lords, I am grateful to my noble and learned friend the Attorney-General, not least for bringing such a distinguished career and experience to this vital role. Can he reassure me that the processes that are currently in place for dealing with conflicts are the same as were in place under the last Government and their law officers? Does he agree that if we examined commercial conflicts of interest with the same zeal and enthusiasm that we assign to legal professional interests, that would be great for trust in democracy and would definitely assist the Government in pursuit of what went wrong during Covid, with corrupt contracts and other favours given to certain individuals and organisations?
It is my understanding that the same rigorous process has been applied to me and my fellow law officers as was applied previously under Governments of all different colours. As to pre-existing experience, Parliament and various Governments have been lucky to enjoy the assistance of lawyers with a range of experience of public, commercial and criminal law. I anticipate that the same rigour has been applied to identify conflicts for all of them.
My Lords, I am not sure whether the Government I served thought it was an advantage to have me in office, but there you are: I was once a law officer. The convention is that a law officer should not disclose his work in such a way as to embarrass his client. The client in his case is—and in my case was—the Government. The Prime Minister could release him from that convention if he thought it appropriate. Has he asked him to help him?
The noble and learned Lord served with great distinction as a law officer and will know that the question as to what I may or may not have advised the Prime Minister is itself covered by the law officers’ convention.
My Lords, nobody doubts the integrity of my noble and learned friend the Attorney-General, nor that he has complied with the conflicts principles, as has been attested to by the Cabinet Secretary. Can my noble and learned friend say what effect seeking to undermine the convention by scraping the bottom of the barrel in this way has on the good functioning of government and of his office?
I have two answers to that. In terms of the current law officers, it has none, because we will not be distracted in the work that we seek to perform with this Government to enable them, through law, to deliver on their objectives. My concern is not for myself nor my colleagues; it is that, where people seek to scrape the bottom of the legal barrel in order to drive short-term political point-scoring, it undermines this country’s important institutions in the eyes of the public.
My Lords, as Advocate-General for Northern Ireland, the noble and learned Lord might well have to advise on matters relating to highly sensitive national security interests in legacy cases, as happened when I was in government. Would it not serve the interests of transparency and public confidence in his office in Northern Ireland if he were to state unequivocally, yes or no, that, in any cases that might involve known associates of people he has acted for, or indeed those individuals themselves, he will simply recuse himself?
I can assure the noble Lord that in those instances, and, indeed, in any subject matter that I am asked to consider as Attorney-General, we will apply the rigorous conflict process to identify and manage conflicts. Beyond that, I am afraid I cannot go.