The prime minister has “absolute confidence” in his attorney general despite negative press briefings, Downing Street has said.
Lord Hermer KC has been subject to a string of negative stories in recent weeks, including in The Times which reported concern from cabinet ministers that changes he made to legal advice had stymied legislation.
Late last year, Lord Hermer bolstered guidance to government lawyers so that they must advise ministers that policies should be considered unlawful if “no tenable argument” could be made in the event they were challenged in court.
According to The Times, this has resulted in cabinet ministers feeling frustrated that Lord Hermer was resisting policies even if there was a only a slim chance they faced defeat in the courts.
And a government source told Sky News’ deputy political editor Sam Coates that departments were “nervous the attorney general is actually making rulings on things”.
“This can complicate decision making,” they added. “We just want him as often as possible not to make definitive judgements.”
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Asked whether Sir Keir Starmer had confidence in Lord Hermer, a Downing Street spokesperson replied: “He has absolute confidence in him and I wouldn’t accept that he is slowing down legislation.”
They added: “Let us be clear about not engaging with the law as a government – failing to do so costs taxpayer money, blocks new infrastructure.
“Taking the law into account is important but we want to make sure the law isn’t used to block things at any costs. We are looking to reduce attempts from three to one and take an axe to red tape and it is in everyone’s interest that changes in law are effective whether it is attorney general, the prime minister or cabinet.”
Shortly after his appointment as attorney general following Labour’s landslide election victory, Lord Hermer – who is the government’s chief legal adviser – updated the guidance on legal risk to also say that ministers should only put forward as a last resort cases they are likely to lose.
The change marks a departure from the approach of Lord Hermer’s predecessor Suella Braverman, who argued government lawyers were “too cautious in their advice” and it had “hampered ministerial policy objectives needlessly”.
“Whilst the government wins the majority of its cases in court, there is a clear trend of lawyers advising negatively, only to be proven wrong in court,” she wrote in 2022.
As well as concerns over the updated legal advice, questions have also been raised about how Lord Hermer’s previous work as a barrister, including representing former Sinn Fein leader Gerry Adams, could result in possible conflicts of interest in his current role.
Lord Hermer attempted to address those concerns by revealing recently that he had recused himself from advising ministers on “certain matters” – although convention meant he was not able to give any details.
The Labour frontbencher told peers in the House of Lords that there was a “rigorous system” in place for dealing with such instances and insisted his department “will always err on the side of caution”.
Nevertheless, the Conservatives have requested an investigation by Cabinet Secretary Sir Chris Wormald in relation to Lord Hermer, including on the “representation of Gerry Adams in matters related to the Legacy Act”.
The Labour government is currently in the process of repealing and replacing the Legacy Act, which blocks Mr Adams and others interned without trial in the 1970s from claiming compensation for unlawful detention.
However, Belfast’s high court ruled parts of it were against the European Convention on Human Rights.
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Sir Keir has said he will “look at every conceivable way” to stop former Troubles internees claiming compensation after a report warned that removing the Act could leave Mr Adams in line for “a payday from the taxpayer”.
Lord Hermer said last week that he represented Mr Adams on “something unconnected” to the Act and also represented the family of a young British soldier murdered by the IRA in the 1970s.
However, it has been reported that the attorney general received a £30,000 fee for representing Mr Adams in a damages claim brought forward by victims of IRA bombings.
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Defending questions about Lord Hermer’s fee in the Commons, solicitor general Lucy Rigby said: “It is a central and well-understood aspect of the British legal system that she, I know, knows that barristers are required to accept instructions if they are available and qualified to do so. This is the well-known cab rank principle.
“She will also be very aware that, put simply, barristers are not their clients.”
