“I’m afraid if I told you that…”: The law officers’ convention

Graeme Cowie

The law officers’ convention expects that ministers will not normally disclose, even to Parliament, the existence or content of government legal advice.

The convention is an important part of the UK’s constitutional arrangements. It ensures that government ministers can seek and receive full, frank and confidential legal advice about policy risks and decisions from their senior legal advisers.

In recent weeks, the Attorney General (Lord Hermer KC) has repeatedly invoked the convention, refusing to answer questions about legal disputes and alleged conflicts of interest.

This Insight provides an overview of the convention, its limits, and its interaction with conflicts of interest within government.

Who are the law officers?

The law officers are political appointees and parliamentarians who provide authoritative legal advice to Cabinet. They provide the political leadership for, and oversight of, the Government Legal Department, which routinely provides legal advice within government.

The UK Government has three law officers:

the Attorney General (who is also the Advocate General for Northern Ireland)
the Solicitor General
the Advocate General for Scotland

What is the convention?

The UK Government’s Ministerial Code states:

The fact that the Law Officers have advised or have not advised, and the content of their advice, must not be disclosed outside government without their authority.

In other words, the convention ensures that conversations between government ministers and the law officers remain confidential.

The convention does not ban ministers from disclosing the existence or content of legal advice, but disclosure is exceptional: in most cases, disclosure is considered not to be in the public interest.

Past disclosures have happened following concerted and sustained parliamentary pressure, such as in relation to EU-withdrawal legal advice in December 2018, and with the explicit consent of those responsible for seeking and giving the advice.

Why is there a convention?

The convention exists because it ensures confidentiality. Confidentiality provides a ‘safe space’ for clients to communicate fully and freely with legal advisers, in the knowledge that doing so will not embarrass them or adversely affect their objectives.

The law officers’ convention is closely related to legal professional privilege, which applies to most communications between clients and their legal representatives (not just within government).

There is also a “rule of law rationale” for not disclosing legal advice (as noted by law professors Rebecca Mitchell and Michael Stockdale in a 2024 Modern Law Review article). Ministers may be reluctant to seek advice, or may be more selective about when and how they seek it, if there is a risk that their exchanges with advisors will be published. If government ministers feel unable to seek full and frank legal advice, there is an increased risk that they might pursue policies without the full legal implications having been considered and understood.

Unlike with other advice within government, records of legal advice are normally made available to future administrations. This expectation is arguably only possible because of the general rule against wider disclosure.

Who are law officers accountable to?

The reliance of governments on the law officers’ convention can be frustrating for parliamentarians and members of the public. The Chair of the Justice Select Committee, Andrew Slaughter (Lab), said in an evidence session in January 2025 that the convention made it “difficult to join up the dots” to measure the performance of law officers in embedding rule of law principles in government:

If we ask you [the Attorney General, about a legal issue], you will say, “It’s not something I can discuss,” and if we ask Ministers about it, whom you may or may not be advising, they will say, “That’s a matter for the Law Officers.”

The Attorney General declined to answer in that evidence session (for example) whether the International Criminal Court’s arrest warrant for Benjamin Netanyahu (Israel’s Prime Minister) would be enforceable in UK courts. He suggested that answering the question would indicate whether the government had sought or received legal advice on the point, and that such disclosure would breach the convention.

How are conflicts of interest handled?

The convention can also make it harder to scrutinise law officers’ potential conflicts of interest . Law officers are often appointed on the basis of extensive experience in private practice: this might have included representing controversial clients (under the cab rank rule, which says that barristers can’t discriminate between clients) in cases against the government.

This earlier work will, from time to time, create conflicts of interest, meaning law officers are “recused” from giving related advice to the government. The process of identifying “actual or potential” conflicts is administered by the Attorney General’s Office, and law officers are bound by the same rules for disclosing private interests as other ministers. Specific recusals themselves, however, are not made public.

What is the current controversy?

Before July 2024, the current Attorney General (Lord Hermer KC) worked as a barrister. In recent years, he has represented litigants in relation to ‘legacy cases’ from the Troubles in Northern Ireland. This has included both defending the former Sinn Féin President Gerry Adams in a tort case (related to two Irish Republican Army (IRA) bombings in 1996) and representing the family of a British soldier (killed by the IRA in 1991).

Both types of litigation have subsequently been barred by primary legislation (passed by the Conservative government). That legislation was successfully challenged in the Northern Ireland courts (Dillon v Secretary of State for Northern Ireland). In December 2024, the current government published proposals to repeal and replace the provisions in the legislation found to be incompatible with the European Convention on Human Rights.

Opposition politicians have asked whether Lord Hermer was recused from advising the government on its response to the Dillon case. While acknowledging that he has been recused on “certain matters” since becoming Attorney General, Lord Hermer has declined to specify which ones, citing the law officers’ convention:

If a Law Officer publicly confirmed specific matters where they were recused, this would likely disclose that the other Law Officer was therefore giving advice or infer that legal advice had been requested by the Government on a specific matter, which would risk a breach of the Law Officers’ Convention.

The Chair of the Justice Select Committee, Andrew Slaughter, has suggested questions put about specific conflicts are an attempt to breach the law officers’ convention “by the back door” and to “undermine the rule of law”.

Others, including Conservatives in both Houses of Parliament and Dr Conor Casey at the think tank Policy Exchange, have argued that specific recusals should be able to be disclosed without implying one way or the other whether advice has been sought.