Advice and advocacy
New law officers expand their horizons
The attorney general and solicitor general of England and Wales have been called to the bar of Northern Ireland. A ceremony took place in Belfast last Wednesday but the announcement was delayed until yesterday.
A former attorney general once told me of his surprise on discovering, some time after his appointment, that he was also attorney general of Northern Ireland. But that must have been during the period of direct rule, from 1972 to 2010.
Once devolved government was restored, the Northern Ireland executive needed its own legal adviser. John Larkin KC served as attorney general of Northern Ireland from 2010 to 2020, when he was succeeded by Dame Brenda King. Like her predecessor — but unlike the law officers in England and Wales — she is not a politician.
But the UK government still needs legal advice on the devolved nations. So a new post was created in 2010, the advocate general for Northern Ireland. That role is held by the attorney general for England and Wales, currently Lord Hermer KC.
The law in Northern Ireland is not so different from the law in England and the law in Wales. Hermer has the support of officials. But nobody would expect an English lawyer to advise on Scots law. So when the Scottish government was re-established in 1999 the UK government appointed the first advocate general for Scotland.
The title may have seemed a good idea at the time: members of the Scottish bar are called advocates, not barristers. But it’s not remotely similar to the post of advocate general at the European Court of Justice, And it’s easy to confuse with the post of lord advocate, whose responsibilities are now to advise the Scottish government.
It’s even easier to confuse His Majesty’s advocate general for Scotland with His Majesty’s advocate, the title given to the lord advocate when prosecuting criminal cases in Scotland. Two years ago, the advocate general and the lord advocate were on opposite sides in a case about whether the then first minister Nicola Sturgeon had the power to initiate a second referendum on Scottish independence.
As I explained, I hope helpfully, the lord advocate is not a lord — just as the advocate general is not a general.
Similarly, the advocate general for Northern Ireland does not advocate for Northern Ireland. The title must have been chosen for consistency with the advocate general for Scotland, who is one of the United Kingdom’s three law officers and sometimes speaks more generally for the UK government in the House of Lords.
It’s not particularly easy to recruit a new advocate general for Scotland when the need arises, even though the job comes with a peerage. Catherine Smith KC was appointed on 29 August, nearly two months after the general election. And yet she is not entirely unknown in Labour circles: her mother is a Labour peer and her father was leader of the opposition in the House of Commons from 1992 until his untimely death in 1994.
Hermer said after the ceremony:
Mutual respect for the rule of law and a dedication to service unites all of the UK law officers.
Being called to the bar for the second time in my career was hugely poignant and I would like to thank everyone who welcomed us during our visit for being so warm and hospitable.
The law officers’ visit to Belfast was arranged to coincide with a lecture delivered by the lady chief justice of England and Wales in memory of Lord Lowry, a former lord chief justice of Northern Ireland. After her lecture, Baroness Carr of Walton-on-the-Hill was made an honorary bencher of the Inn of Court of Northern Ireland.
I am not sure the following answers you point (as to the term 'advocate') but here goes:
(1) Retain the terms advocate for all those who are qualified to appear in court (mostly solicitors (sometimes solicitor advocates, like me) and barristers.
(2) Advisers to any government must not be politicians (whatever their title). We can all think of instances where the giving of advice has been tinged (and more) with what must sometimes be very difficult conflicts of interest.
(3) And of course get rid of the grant of KsCs as a title; no more 'King's Counsel' (sorry Joshua). However KC's ever advise the king? At least stop the near obsessive use of KC whenever almost anywhere a holder appears in law reports, and other texts where their name is mentioned.