Publishing Government Legal Advice

This House of Lords Library Briefing provides a brief overview of the role of the law officers and the convention on the publication of their legal advice to government in light of recent demands for the Government to publish the legal advice that is has been given regarding Brexit and the withdrawal agreement.

In the UK, law officers of the crown are responsible for providing legal advice to the government. Successive governments have observed a long-standing convention that the advice they receive from law officers is not disclosed outside government. This House of Lords Library Briefing provides a brief overview of the role of the law officers and the convention on the publication of their advice. It also gives examples of how the Government has referred to the convention in response to calls for it to make public the full advice that it had received from law officers. The final section discusses demands for the Government to publish the legal advice that it has been given regarding Brexit.

Over recent weeks, there have been repeated calls—including from Labour, the Liberal Democrats, the Democratic Unionist Party (DUP) and a former Secretary of State for Exiting the European Union—for the Government to publish in full the legal advice it has received about its proposed Brexit deal. On 13 November 2018, a binding motion for a return was agreed without division in the House of Commons, calling for “any legal advice in full, including that provided by the Attorney General, on the proposed withdrawal agreement on the terms of the UK’s departure from the European Union including the Northern Ireland backstop and framework for a future relationship between the United Kingdom and the European Union” to be laid before Parliament.

The Government published a “full reasoned position statement” setting out its legal position on the Brexit deal on 3 December 2018—the day before the Commons began its debate that will culminate in the ‘meaningful vote’ on the deal—and the Attorney General made a statement and took oral questions in the Commons. However, on 4 December 2018 the House of Commons narrowly voted in favour of finding the Government in contempt of Parliament for failing to comply with the 13 November motion, and ordered the Government to publish the Attorney General’s full legal advice immediately. The following day, the Government published the advice that the Attorney General had presented to Cabinet on 14 November 2018 on the legal effect of the withdrawal agreement. The Government argued that this should not set a precedent for any future release of law officers’ advice.