Demand for answers over Lord Hermer-Gerry Adams controversy growing louder as legal experts publish report

The influential and well-connected think-tank Policy Exchange has published a piece by law academic Conor Casey, backed up by senior legal figures, which adds fresh impetus to the calls for clarity over the matter.

The story has its roots in a 2020 court decision about Mr Adams.

That 2020 Supreme Court ruling quashed Mr Adams’ convictions for trying to escape custody during the 1970s, finding that the internment order which led to him being detained in the first place was invalid due to a technicality.

This opened up the way for Mr Adams and other ex-internees to claim compensation from the government.

But the 2023 legacy act contained a clause explicitly barring such compensation claims.

However, in February 2024 the High Court in Belfast then ruled that this bar was unlawful because it breached the European Convention on Human Rights.

This once again paved the way for Mr Adams and others to make compensation claims – and, crucially, in July 2024 the new Labour government decided to drop an appeal against that court ruling.

Controversy has arisen in the last week about whether Lord Hermer, the UK attorney general, played a role in the decision not to appeal the court ruling.

That is because Lord Hermer in 2023 had represented Mr Adams in a separate court case concerning civil claims made against the ex-Sinn Fein leader.

Since dropping the appeal stood to benefit Mr Adams, a former client, it has been claimed that there could be a potential conflict of interest for Lord Hermer if he was involved in the appeal decision (something which he has so far declined to comment on).

In his foreword to the piece by Dr Casey for Policy Exchange, Lord Faulks KC, a former minister at the Ministry of Justice, wrote: “It seems to me of considerable importance that Lord Hermer should make clear whether he recused himself, or was recused, from involvement on matters concerning the legacy act insofar as they may have benefited his former client …

“This government rightly sets great store by the rule of law. That includes sensitivity to actual or perceived conflicts of interest. The attorney general should clarify his position.”

In a foreword of his own, Robert Buckland MP, former UK solicitor general (the deputy to the attorney general), said: “There is no constitutional basis for Lord Hermer to refuse to answer questions posed by parliamentarians or the public about whether or not he had been recused or had recused himself from involvement in relation to a matter in which he faced a possible conflict of interest.

“Parliament should be told immediately whether he was excluded from decisions about legal matters that posed a possible conflict of interest in view of the interests of his former client, Gerry Adams.”

And in his own detailed legal opinion, Dr Casey (a senior lecturer at Surrey Law School and senior fellow at Policy Exchange’s Judicial Power Project) has looked at something called the Law Officers’ Convention.

This effectively means that, by tradition, the government remains silent on any legal advice it has been given by law officers such as the attorney general.

This has been cited by the attorney general as the reason for not commenting on the potential for the Gerry Adams conflict of interest.

The convention is also enshrined in the ministerial code (the attorney general is a government minister), which states that “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”.

Dr Casey argues that the Law Officers’ Convention “is not absolute, and can be waived for compelling reasons” – and “has been waived quite frequently in recent years, often in response to political pressure”.

He said: “For example, the fact the attorney general has provided legal advice has been disclosed in respect of matters like the legality of the Iraq war, drone strikes against British citizens fighting for Islamic State, use of armed force against Syrian government forces, the legal effects of the Northern Irish backstop contained in then prime minister Theresa May’s Withdrawal Agreement, and the legality of the Internal Market Bill.”

But in any case, Dr Casey goes on to say: “Asking the attorney general if he would be able to advise on an issue that might impact a recent former client and as such possibly involve a conflict of interest, is distinct from asking whether legal advice has in fact been sought or given.

“Asking and answering the former question would not contravene the convention, nor would asking the attorney general specifically if they were conflicted about advising on a particular topic and have taken steps to recuse themselves.

“This kind of question, too, is not the same as asking if legal advice on a given issue has in fact been given or not.”

The attorney general’s office has been quoted as saying in response to the controversy: “The public can be assured that there are rigorous systems in place to ensure that law officers (who have extensive legal background and a wider number of past cases) would not be consulted on any cases that could give rise to a conflict of interest.”

And a statement from the government said there are “rigorous and long-standing protocols to ensure all law officers are not consulted on issues that give rise to conflicts of interest”.