The Rule of Law and the role of the Law Officers

Office Of The Advocate General For Scotland

June 14
16:25 2018

The Advocate General for Scotland The Rt Hon Lord Keen of Elie QC delivered this keynote address at the Scottish Public Law Group (SPLG) annual conference in Edinburgh:

ADDRESS TO SPLG Conference, 11 June 2018

I am pleased to have been invited to address this Group on its tenth anniversary. The creation of the SPLG in 2008 was a timely event, during a period of great change in public law, and the last ten years have given the Group much to continue studying and discussing. I think it is an extremely good thing that we have a cross-section of the legal profession represented here today, including from the Bar and government.

I propose to begin by providing a flavour of what I, as a government Law Officer, do.

Of course, I appreciate that as public lawyers you will all have a grasp of the role of the Law Officers. I also appreciate that this Group has been addressed by other Advocates General in its ten year history. So, although perhaps telling you that which you already know, I am hoping to demonstrate that the importance of the role is well understood.

It is essential that the Law Officers are champions of the rule of law within government, and it is equally important that you are given reassurance that we fulfil that role. Our advice, both formal and informal, is confidential a private matter between client and lawyer, so the extent to which we are effective in our advocacy to government is not necessarily on public view. I hope today to reassure you that all such advice is given in the best traditions of maintaining the rule of law.

I am, of course, the Advocate General for Scotland, (the full title given by the legislation which created the office) and have a specific remit to advise the UK Government as principal legal adviser on matters of Scots law, and to act on behalf of the UK Government in Scottish Courts. As a Law Officer I am also able, like the Attorney General, to exercise rights of audience before the courts of England and Wales.

Within the UK Government, to government ministers and civil servants, I do frequently stress that Scots law, and the jurisdiction of the Scottish courts, is no small matter it is the law applicable to about one third of the territory of the UK. Every decision which civil servants or Government Ministers make, every piece of legislation prepared, must be tested for its application in the context of that legal system, and may be subjected to review by those courts in Scotland.

But the essence of my role is that I am a Law Officer of the UK Government, part of a team with the Attorney General and Solicitor General, and we should perhaps pause to consider what exactly that means.

It is obvious that a government Minister in the Ministry of Defence is concerned with defence; that the Secretary of State for Health deals with health matters, and so forth, but what are the Law Officer ministers actually for?

It is sometimes said that we are the Ministers for the rule of law, and, given that is a more abstract concept than health, defence or welfare, it requires further explanation.

The duty of the Law Officers is to ensure that the Government acts lawfully at all times that is, that Ministers act within the law, and civil servants stay within the law. This is reflected in the Ministerial Code which states that the Law Officers must be consulted in good time before the Government is committed to critical decisions involving legal considerations. The current version of the Code contains a section specifically dedicated to the role of the Law Officers, but in its introduction it also makes it clear that it should be read against the background of the overarching duty on Ministers to comply with the law and to protect the integrity of public life.

Law, in particular statute law, is the instrument of government it is perhaps the primary means governments have of giving effect to policy.

As a member of the Cabinet committee known as the Parliamentary Business and Legislation Committee, I as a Law Officer exercise high-level oversight over the preparation of legislation by all government departments. In seeking to uphold the rule of law, I try to ensure that all legislation the Government prepares meets the requirements of legal certainty: the law should operate in a clear and predictable manner where possible. A change in the law should be clearly understood (or at least understood with the assistance of a reasonably competent legal adviser).

A change in the law should also, ideally, take place in the future. That is why there is a strong presumption against legislation being retrospective or commencing early and by early we mean within two months of Royal Assent. The consent of the Law Officers is required where either of these options is being proposed there are occasions when the rule of law is best served by retrospective or early legislation, but we have to ensure that the limited exceptions remain exceptional.

If the rule of law is disrespected, and falls into disrepute, elected governments will not be able to govern effectively any government is simply shooting itself in the foot if it undermines the rule of law. When faced with proposals made by my colleagues, I ask them to consider not just what they wish to achieve in the short-term, but also to reflect upon what the next government might do in their shoes and thereby place these proposals into context.

Support for the rule of law is not just a matter of following rules obediently it places a greater responsibility than mere observance of the law on public servants simply following the letter of the law is not enough.

An example which affects everyone in government officials and Ministers - is the duty of candour before the courts, which arises from a respect for the rule of law and the importance of the role of courts. In court we are obliged to do more than avoid telling outright lies rather, we have a duty to be transparent, not to withhold significant information from the courts in short, not to dissemble in any way. The duty of candour applies to all those who derive their authority from public law, and so includes both Ministers and their officials. The principle was explained by Lord Donaldson MR in the Huddleston case , and the relevant passage is worth quoting in full. He said that the development of the remedy of judicial review and a specialist administrative or public law court

has created a new relationship between the courts and those who derive their authority from public law, one of partnership based on a common aim, namely the maintenance of the highest standards of public administrationThe analogy is not exact, but just as the judges of the inferior courts when challenged on the exercise of their jurisdiction traditionally explain fully what they have done and why have done it, but are not partisan in their own defence, so should be the public authorities. It is not discreditable to get it wrong. What is discreditable is a reluctance to explain fully what has occurred and whyCertainly it is for the applicant to satisfy the court of his entitlement to judicial review and it for the respondent to resist his application, if it considers it to be unjustified. But it is a process which falls to be conducted with the cards face upwards on the table and the vast majority of the cards will start in the authoritys hands.

Similarly the court in Al Sweady talked of a very high duty on central government to assist the court with full and accurate explanations of all the facts relevant to the issue that the court must decide.

Now, to many in government those dicta seem challenging and perhaps they are challenging but it is part of the job of lawyers within government to remind them that it is to the benefit of government that its decisions and actions can be challenged in court. Those of us in government with responsibility for promoting the rule of law must deliver this message to all of our colleagues: do not be afraid of Judicial Review. Do not fear the courts. By providing an external check on the limits of executive power, the courts are a powerful ally to those within government who restrain the zeal of our colleagues or encourage policies which promote the rule of law.

It is perhaps a useful thought-experiment to imagine a world with no Judicial Review of our public administration where no citizen has recourse to a forum which will vindicate his rights against the full power of government.

I think from within government it is sometimes easy to forget the enormous power the state can bring to bear against individual members of the public not just the power to imprison or wage war, but the power to take your home into public ownership to drive a new motorway or railway through it; the power to take your children into care; the power to put an individual on a plane destined for a hostile country.

The executive arm of government wields power over the most intimate and personal aspects of the lives of every single person in the country: our homes, our families and our jobs. Faced with the fearsome responsibility of exercising the full coercive powers of government, we should actually be grateful that the courts are there to offer guidance and set boundaries.

And in order for the courts to fulfil this role, there must be parties individuals, companies, organisations able and indeed prepared to take their cases to court. The cases Ive mentioned already required a Huddleston or Al Sweady to seek Judicial Review in the first place. The language that we use in discussing any aspect of law is coloured by the names of the litigants who brought the cases which form the basis of our legal shorthand. Without them, there would be no common

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