In May, we posted a blog entitled ‘The politics of publishing select committee advice’ in which the authors discussed the potential negative implications of making public the legal advice given to parliamentary committees. Here, Gabrielle Appleby argues that there are in fact benefits to publishing such advice, and that it could be advantageous to parliamentarians and the public if it was done as a matter of course.
The work that has been done by Ben Yong, Greg Davies and Cristina Leston-Bandeira, (as explained in their recent post, ‘The politics of publishing select committee advice,’ and in more detail in their publication in the Law and Society Journal), with their focus on parliamentarians, clerks and parliamentary lawyers, is an important contribution to understanding under-studied constitutional actors. Their work provides more than doctrinal examination or theoretical musing on the work of these actors. It is informed by a rich empirical insight into the phenomenon of the release by parliamentary select committees of in-house legal advice that might have been provided to them to inform their deliberations, which they say is increasing in a concerning manner.
I welcome their general conclusion, that there is a need for ‘written guidance in order to improve consistency’ around the publication of such advice. However, I write to proffer a version of that guidance that is not just more permissive of publication than that alluded to by the authors, but, indeed, actively encourages it.
How should parliamentary committees use legal advice?
As I have written with my colleague Anna Olijnyk, I support a framework in which parliamentary deliberations are informed by legal advice (including the deliberation of parliamentary committees) and that advice should be released as a matter of course.
To justify my position I must first explain my starting point. Like Yong, Davies and Leston-Bandeira, I hold concerns about the juridification of politics, and, more specifically, about the over-reliance on legal advice to inhibit the legitimate development of policies and laws. Responding to that concern in the context of constitutional limits (coming as we do in Australia from a tradition of a written constitution), Olijnyk and I have developed a normative framework for executive and legislative deliberation, which tries to balance the tug of the rule of law towards legally enforced rules and norms against the need for flexibility and innovation in political decision-making. We propose a framework in which the legal position must inform political decision-making, and in some cases will be determinative. But, in many cases of ambiguity and indeterminacy, it will inform without dictating the outcome.
That is, it should inform a holistic deliberation about a proposed policy or law, weighed against other political, social, economic and environmental factors. As Vanessa MacDonnell has argued in the Canadian context, the executive’s policy agenda should not ‘be given over entirely to constitutional implementation’, but rather, ‘[t]he executive must be able to demonstrate that it has allocated an appropriate proportion of the policy agenda to constitutional implementation, and that it has developed a reasonable “ordering” of “priorities” in fulfilling its obligations.’
This has two implications for the provision of legal advice to parliaments, and its committees, and the release of it.
- How legal officers give advice to parliamentary committees
Firstly, legal advisers to government and parliament need to be extremely sensitive to their role. This weighted deliberation requires high quality legal advice that indicates the level of certainty that exists in a body of law, and how close to the known line the proposed decision, action, policy or law falls. As I have argued in my book, The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest, a good government lawyer must, where there is legal uncertainty, set this out. This can come in more than one form. Where there is ambiguity as to the state of legal authority or its application to particular facts, this can be resolved in favour of a preferable view by the application of traditional legal method. Where there is a view that provides the most coherent explanation of the text, previous case authority and the purpose behind the principle, it is generally accepted that lawyers should advise that this is the best legal position. The advice should also give some indication that the matter lacks absolute clarity, and good advice should also consider whether the court before which the client may appear is likely to take that view given what is known about how the judges of that court have decided similar decisions.
However, where there is genuine and deep uncertainty in the legal position, where the application of legal method reveals no preferable view, a number of views are plausible and there has been no indication about the preferred view of the court, the lawyer must try to make her or his best assessment of the law. However, in recognition of the impact that legal advice can have on the scope of political power, they must also indicate the indeterminate nature of the legal position. In some ways, this is putting the question back into the government’s or the parliament’s court. But, this should not be viewed with cynicism; it is consistent with the democratic mandate of the political branches, and their constitutional duties and responsibilities. Good legal advice in this instance will make it very clear, where necessary, when the legal position is uncertain and must be informed by a policy choice about whether to pursue the action or legislation despite this uncertainty, a choice that can then be held accountable through political means.
- A presumption in favour of publication of legal advice to parliamentary committees
The second implication of our model is that it leans in favour of publication of legal advice that has informed the actions of political actors.
Publication alleviates the concern of over-reliance on legal advice: the instructions that it proceeded from, the strength of its conclusions and the caveats which it contained will all be available for public scrutiny. People will be able to seek a second or third opinion to test the robustness of the advice that is informing political decision-making by committees seeking to exercise influence.
Publication means the way the executive or parliament used that advice – that, is, weighted that advice – is available for public scrutiny. Did the parliamentary committee over-rely on what was actually heavily caveated advice, tentative, – or worse – dubiously reasoned advice? Only with the full release of advice will this become apparent. This can’t be achieved through extracts taken from the advice (although acknowledging there may be some caution required, for instance, around national security that might require redaction), or perhaps even more dangerously, ‘public summaries’.
The role of parliamentary committees
Before I turn to some of the objections raised by Yong, Davies and Leston-Bandeira to publication of legal advice, it is necessary to explain one further, interrelated, justification for publication. The constitutional role of parliamentary committees encourages publication of the advice that has informed their work. Now, of course, it is incorrect to speak of a single function of a parliamentary committee: they can be involved in scrutinising executive action or proposed legislation, they can investigate areas of proposed law reform or issues of contemporary importance, and they can conduct investigations into breaches of parliamentary privilege. But in each of these sub-functions, the committee is performing a single overarching role: providing a forum for more detailed investigation of issues to inform the decision-making of parliament or government in relation to that issue. Theirs is not hard political power, but the soft power of assistance and influence. Indeed, it is the desire to exercise greater political influence that Yong, Davis and Leston-Bandeira argue is motivating the increased ad hoc disclosure of legal advice.
The release of legal advice assists committees in fulfilling this role. Public release of advice more fully informs the parliament or the government of the basis on which the committee makes its recommendations. This might make those recommendations more or less influential, but it will ensure that the decision-makers are properly informed of the basis for the recommendation before deciding to act, refrain from acting, or conduct further inquiries.
An additional function of committees might be added: consistent with the principles of open public debate that underpin the role of the legislature, committees have a role in increasing public understanding of the legislative process and the law that results from this. This allows for a more informed citizenry able to hold its government and parliamentarians to account. Publication of the legal advice that informed a committee’s work, and explaining how it did so, promotes democratic accountability.
Objections to ad hoc publication
Yong, Davies and Leston-Bandeira raise a series of objections to the release of advice, or at least the ad hoc release of advice, that draws from their interviews with clerks and parliamentary legal officers. Having spoken to a number of government and parliamentary legal officers in the course of my own research, I did not find these positions surprising. But what I did find surprising was no alternative voices in the debate, because they do exist, and, I believe, they are persuasive. Here, I consider three of these objections.
- Parliamentary committees must take responsibility
The first is that clerks and parliamentary lawyers are worried that release of advice grounded in political motivations will lead to parliamentary committees ‘hiding behind’ legal advice, not speaking with their own voice and taking political responsibility for their decisions. While I would agree this is a danger with the ad hoc release of advice, my argument would be that a shift in the practice should be towards a default of release, rather than restriction of it. If this is the fear, I can’t see how restricting release will address it. If advice is not released, we will have no way of knowing whether the actual decision making has been overly influenced by legal advice, nor will we be able to judge the strength and quality of that advice. As Yong, Davies and Leston-Bandeira write, under the current practice ‘Most in-house legal advice and support is delivered in private sessions and forms part of the background to committee deliberations.’ So we have no idea what it says, whether it informed decision-making, and if it did, whether it exercised an appropriate level of influence, or if there was an over-reliance.
If the norm was to release legal advice, it would become quickly apparent that lawyers very rarely have all of the answers. Legal ambiguity emerges even in seemingly settled areas of law. Rather than cementing a perception that legal advice is determinative, if the norm was to release it, this would require parliamentary committees to grapple with this fact, and to explain how the legal position was taken into account in different circumstances, that is, where they were advised the position was clear, ambiguous or caveated. I believe it could promote – not inhibit – a culture of justification.
- Avoiding politicisation of parliamentary in-house lawyers
A second concern that is raised is that the release of legal advice leads to the politicisation of the committee’s in-house lawyers. I do not want to make light of this concern, as I see the independent support, including through lawyers, of parliamentarians as extremely important. However, I think two matters must be borne in mind.
The first is that I understand concerns that parliamentary lawyers might become politicised in an environment in which committees are determining, ad hoc, when to publish advice, and do so only in a way that supports their position. Indeed, in my book I raise this exact concern over the politicisation of legal advice by the ad-hoc release by government of Solicitor-General advice. In my own research, for instance, Gareth Evans, a former Commonwealth Attorney-General, explained that sometimes to relieve political pressure, the Solicitor-General’s advice was sought ‘for the record’.
But, if a framework in which there is a presumption of publication were to be introduced, the danger of lawyers being politicised in this way is reduced. This is also connected to the point I have made above, that if committees are encouraged to release all advice that informs their decision-making, this will also force them to explain how they have used that advice, thus taking ownership over the decision, while promoting a more robust culture of justification and transparency around the factors that informed that decision-making.
My second argument is in answer to the concern, articulated by Yong, Davies and Leston-Bandeira more explicitly in their Law and Society Journal piece, that publicity might have a chilling effect on the robustness and frankness of the advice provided. This, in my mind, confuses somewhat the role of the civil servant and the lawyer; the latter of whom is bound by legal professional obligations. As Olijnyk and I have written in anticipation of this argument:
The possibility that others will see the advice ought not, in principle, to affect the lawyer’s view of the legal position. Indeed, serious concerns as to the ethics of the legal advice would be raised if the possibility of public disclosure would change the position a legal professional would take. Indeed, possible publicity might spur the lawyer towards more scrupulous adherence to ethical ideals of robustly independent advice.
From a more pragmatic perspective, given the possibility that legal advice might be released by committees ad hoc, those providing legal advice to committees are already aware it may become public. Even if a chilling effect is a genuine concern (although note my skepticism above), it has likely already occurred.
- Reducing challenges to government
A further concern is that the publication of advice might encourage a challenge to government or parliamentary action that might be based on a committee’s recommendation. Again, I have difficulty with this. While shoring up decisions, policies and laws from challenge is, no doubt, often in the front of mind of executive and parliamentary officers, I can’t see it as a principled objection. Indeed, a system operating under the rule of law should not shy away from an informed public.
Yong, Davies and Leston-Bandeira’s excellent recent work on the publishing of legal advice by select committees reminds us that if we want a more complete understanding of the constitutional system, we must study the work of lawyers within the political branches of government. Greater attention needs to be paid to how lawyers advising parliamentary committees formulate their advice, particularly when dealing with issues in which there is legal uncertainty, in light of the potential influence that they might have on parliamentary decision-making. While legal considerations must inform this decision-making, it should not alone be leading political actors to take a particular decision. To facilitate greater transparency about the influence of legal advice in parliamentary decision-making, as well as contributing to greater public awareness, I’ve advocated for a norm of publication of such advice.
This blog post is a response to an earlier article, entitled The politics of publishing select committee advice, which was published on the Constitution Unit blog in May.
About the author
Gabrielle Appleby is a professor at the Law Faculty of the University of New South Wales and the author of The Role of the Solicitor-General: Negotiating Law, Politics and the Public Interest (Hart Publishing, 2016).