Parliamentary select committees at Westminster are assisted in their work by teams of impartial parliamentary staff who fulfil a variety of functions. This can include the provision of legal advice by parliamentary lawyers. In recent years, some committees have chosen to publish that legal advice. Drawing on their ongoing research, Ben Yong, Greg Davies and Cristina Leston-Bandeira examine the practice of publishing legal advice, the reasons behind it and the potential implications for the work of committees and their advisers.
In 2017, the House of Lords European Union Subcommittee on Financial Affairs took a highly unusual step. It published the advice provided by the then EU Committee legal adviser, Paul Hardy, as part of its inquiry on Brexit and the EU Budget. Hardy argued Article 50 of the Treaty on European Union allowed the UK ‘to leave the EU without being liable for outstanding financial obligations under the EU budget’ (p.63). The implications of such advice were politically controversial.
But the act of publishing in its entirety the in-house legal advice provided to the committee, and the legal adviser named, also merits serious attention. There is a small but growing trend of select committees at Westminster publishing the legal advice provided to them by the in-house lawyers of parliament (‘parliamentary lawyers’). The trend raises a number of questions: why are Westminster select committees publishing in-house legal advice; what does this tell us about the internal dynamics of select committees; and what are the implications of publishing internal advice for the House and parliament? This is the focus of our latest article, ‘Tacticians, Stewards and Professionals: The Politics of Publishing Select Committee Legal Advice’ (open access from the Journal of Law and Society).
We have been carrying out a bigger project, funded by the Leverhulme Trust, looking at the provision and reception of legal advice to the four legislatures of the UK. We have now interviewed about 75 individuals, of whom approximately 30 work or worked in Westminster.
Why is this happening?
Select committees will sometimes receive legal advice from the in-house legal services of parliament. In the House of Commons, for instance, much of this comes from the Office of Speaker’s Counsel: a small group of lawyers who are permanent, impartial House staff, employed to provide legal support and advice to the Houses of Parliament. ‘Legal advice’ can cover explanation and information to the application of relevant law to a specific set of facts, and any of the various stages in between. We focus on the more formal side of the spectrum.
Most in-house legal advice and support is delivered in private sessions and forms part of the background to committee deliberations. In recent times, however, there have been a number of instances where in-house legal advice has been published by committees, in full and separately to the main body of a committee report (as opposed to referred to or interwoven into the text).
From our research, we have identified seven instances (see Table 1 below) where select committees from both the Commons and the Lords have published in-house legal advice. This is not a lot, but it is only what we could identify: there may be more.
Table 1: Examples of select committees publishing in-house legal advice from parliamentary lawyers
* Technically, the Lord Speaker’s Committee was not a select committee, but an ad hoc committee established under the aegis of the Lord Speaker.
Pressures to publish legal advice are growing—six of the seven instances we have identified have taken place in the past four years. There have also been at least two documented instances of leaked in-house legal advice to parliament, including one late last year.
Why is this happening? Select committees are seeking means to assert influence and have visible impact. Parliamentarians feel increasingly compelled to seek and publish advice as evidence to justify particular conclusions and ensure influence. Legal support and advice are seen to offer a degree of weight to committee views and recommendations. Brexit, and all the legal complexity it entails, is another pressing reason.
What does this tell us about the internal dynamics of select committees?
In many of the select committees we examined, there are three types of actors: parliamentarians, clerks and parliamentary lawyers — the latter two being permanent parliamentary officials. Parliamentarians are tacticians: they are highly instrumental in their approach, seeking to exert influence via the select committee. Clerks are stewards. They are broadly responsible for the smooth running of the committee and the management of committee staff. But they also consider themselves to have a broader duty to protect the medium- and long-term interests of the House. Parliamentary lawyers are somewhere in-between. They are professionals, primarily governed by their professional norms as lawyers.
Most of the time the views of these actors coincide. Clerks and parliamentary lawyers respect and uphold the autonomy of the committee, because members and peers have a legitimacy that staff lack. This includes accepting that committees can do what they want with the evidence and advice they receive.
But when committees start to consider publishing in-house legal advice, then the interests and goals of the three types of actors begin to diverge. One MP, for example, had ‘absolutely no doubt’ that they would publish legal advice if it supported their committee’s agenda (although they also insisted they would not publish the advice if they ‘didn’t believe it was credible’).
Clerks and parliamentary lawyers were more wary. Thus, one parliamentary lawyer agreed that ‘[T]o an extent your advice is … the clients to do what they want with.’ But another argued:
‘[I]t’s really important that [parliamentarians] take responsibility for speaking in their own voice… I’ve also got reservations about it being published… [I]t encourages the sort of lawyer shopping idea… People say, how big’s your QC compared to their QC? The legal advice shouldn’t become itself an issue. It should be facilitating discussion and debate and therefore, it shouldn’t become an issue about what the legal advice is…’
And one clerk suggested:
‘…There is a risk around exposing too much [of] the advice which committees receive, because it will encourage people unhappy with the way the committee is going to direct their fire at the advisers rather than at the committee, which will make it very hard for the committee to get work done…’
So we can see that in various ways clerks and parliamentary lawyers are concerned about publication of in-house advice. They value their political impartiality: publication of advice potentially threatens that. It personalises the advice; it potentially politicises it; and it threatens the relationship of trust and confidence between officials and parliamentarians.
Moreover, publication could limit future committees’ autonomy, because it creates an expectation that in-house advice should be published and followed; and because it creates the perception that legal advice is determinative, rather than being advice that can be acted upon or not.
The pressures on and interests of parliamentarians mean that they may lack the time to consider carefully whether the short-term benefits of publishing in-house legal advice outweigh the potential long-term institutional costs. They are more concerned to exert committee influence. They are perhaps less aware of the potential long-term impact on committees generally, the potential politicisation of impartial staff and the inflationary effect on legal advice. Clerks and parliamentary lawyers, as permanent and impartial staff, are much more sensitised to these broader institutional concerns, but may face difficulties in persuading parliamentarians to take these concerns seriously.
Perhaps one means to address this gap in understanding at Westminster is to replace the current ad hoc approach with official guidance, which could be provided to committees considering publication. This would at the very least alert committees to some of the broader issues involved. This could also bring some consistency to the decision to publish, and avoid any unforeseen and undesired consequences.
A final point. Respect for the impartiality of parliamentary officials is not something which we can take for granted. A recent article in the Sunday Times and the discussion by Andrew Kennon in a Constitution Unit blog, here shows that in times of deep political division, the impartiality of parliamentary staff can easily be targeted. But the bigger danger to impartiality may come not from ill-advised or uninformed reporting, but rather slow erosion from within. Publication of legal advice—and internal advice generally—may contribute to this slow erosion.
About the authors
Ben Yong is a lecturer in law at the University of Hull; and an honorary researcher at the Constitution Unit. He is the Principal Investigator on a Leverhulme Trust research grant, “Legal advice to legislatures – supporting a professionalising legislature” (RPG-2016-388). He tweets as @BYMYong.
Image credit: UK Parliament: CC BY 3.0