A case for publishing select committee legal advice

g_appleby_headshot.jpg.pngIn 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. Continue reading

The politics of publishing select committee legal advice

f9pJoDDq_400x400 (1)picture.1257.1530012142Cristina.Leston.Bandeira1Parliamentary 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. Continue reading

The latest special adviser data release: political control trumps technocratic measures of effectiveness

benjamin_yonghamish In December the government published its latest list of special advisers, revealing a small reduction in numbers under Theresa May compared to David Cameron’s 2015 government, with the reduction falling mostly on departments rather than the centre. In this post Ben Yong and Harmish Mehta examine the new list. They argue that by reducing the number of special advisers in departments Prime Minister May has prioritised political control over technocratic measures of effectiveness.

When Theresa May first became Prime Minister there were a number of reports (including in The Times, The Telegraph and Civil Service World) that she had insisted on a cap on the salaries of special advisers (spads) – which in effect would limit both the number and quality of spads appointed. This cap, the reports said, would deter good people from entering government. How true are these claims?

Just before Christmas, the government made its annual data release, setting out the number of spads and how they are distributed across government. There are now 83 spads in government; down from 95 under Cameron’s 2015 government, according to the data release. The centre (broadly defined as No. 10 and the Cabinet Office) has ‘lost’ just one spad; the key Whitehall departments have lost eleven (most significantly from the merging of BIS and DECC into BEIS; and in the Treasury). So there has been a drop in numbers, but this has fallen mostly on departments, not the centre. There has been the usual grumble about salaries and cost, but that is standard fare.

The bigger question is what all this says about May’s government, and more generally, British government. In popular parlance, spads are regarded as a waste of money and at worst, a pernicious breed of quasi-politicians. Within Westminster and Whitehall, however, they have long been accepted as part of British government. Spads are people the minister can completely trust, in a lonely and difficult role; they provide political advice of a kind that career civil servants often cannot; they can help coordinate government. It is this latter view of spads which informs some criticisms of May’s policy on spads (see The Spectator and The Telegraph). Limiting the number of spads and the kind of spads via a salary cap means limiting government effectiveness.

Continue reading

The latest Special Advisers reshuffle

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A new book Special Advisers: Who they are, what they do and why they matter by Ben Yong and Robert Hazell is to be launched tonight at the Institute for Government. In this post, Ben Yong draws on the research conducted for the book to analyse the latest Spads reshuffle.

‘Won’t somebody think of the spads?!’ said one wag following the recent reshuffle. We here at the Constitution Unit (and Hull) have been. We’ve just written a book on spads, gloriously entitled Special Advisers: Who they are, what they do and why they matter. We’ve spent 18 months looking at special advisers between 1979 and 2013: all 626 of them. We interviewed over 100 people, including almost 40 spads and 30 ministers (both former and current).

As part of this we’ve been looking at the tenure and distribution of spads over time, both within a government and over successive parliamentary terms. So here we present an interim analysis of the last spads reshuffle.*

The first point is turnover. Of the 63 Spads who began in 2010, only 31 remain. Half have left. The majority of the initial batch who remain are connected to ‘the big beasts’ of the government (David Cameron, George Osborne, Nick Clegg etc)—or at least, those whose ministers have not been reshuffled out.

But this misses the bigger story. The total number of spads employed by the Coalition between 2010 and 2014 is around 175. In fact, the number of spads who leave has been increasing as time goes on. In 2010 five left; in 2013 around 30 did. This makes sense: spads leave because of reshuffles, exhaustion, wanting to do something new—and getting out while the going is still good. But they must be replaced.

Continue reading

The ‘Revolving Door’ of Special Advisers?

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A recent article in the Telegraph was critical of a ‘revolving door’ of special advisers (spads) from the last Labour government into charities or think tanks.

As outlined in the forthcoming book on spads by Ben Yong and Robert Hazell, this blog post wishes to point out that the Telegraph article tells only an incomplete story;[1] first, a ‘revolving door’ implies not merely that spads go to work in a given sector after leaving office but that they also did so before. Second, the article does not examine where Conservative spads head after their time in Whitehall.

On the idea of a revolving door, our project coded the careers of special advisers before and after their time in Whitehall. The data suggest that the idea of a ‘revolving door’ with respect to the non-profit sector is overblown. Rather, of those who worked in the non-profit sector at some point in their career (32% of Labour and 15% of Conservative spads), the vast majority (74%) only joined that sector after leaving Whitehall.

When looking at think tanks, the claims in the Telegraph article are on stronger ground. Labour advisers were again more likely to work in a think tank after leaving Whitehall (15% vs 8% for the Conservatives). Moreover, of those who worked for a think tank at any point in their career, around 30% of Labour did so both before and after their time as a special adviser (the definition of a ‘revolving door’) whilst only 6% of Conservative ones did so.

Continue reading

Taking special advisers seriously

6th November 20103

Special advisers (spads) are in the news again. The Coalition government has finally (and belatedly) released its annual report on numbers and cost: there are now 98 spads in post—30 more than when the Coalition started, breaking the Coalition pledge to keep numbers down and topping the former high of 83 (in 2001) under Tony Blair.

But so what? Why the obsession with the number and cost of spads anyway? They have a peculiar reputation: they are spinners, intriguers, bag carriers, policy wonks; they are exercise great power, being more influential than officials and junior ministers. They are young, inexperienced, politicians-in-waiting. We’ve all seen The Thick of It. Contrary to their stereotype as political mischief makers, we have found strong support for our conclusion that spads have become accepted as indispensable to government.

The Constitution Unit has been carrying out an 18 month project on special advisers. It involves the construction of a database of all known spads between 1979 and 2012; surveys of former spads; and we have carried out over 100 interviews with former and current spads, ministers, officials and external stakeholders (interest groups, political parties) in order to understand what it is spads do and how they go about it.

The first obvious point is that if numbers are rising, it is because ministers keep appointing them. That’s a banal statement, but it needs to be said. Ministers appoint spads, so the real question is, why do ministers need them? A key reason is ministerial overload: ministers are now simply too busy, and the governing of Britain too complex. And it is not just about the volume and complexity of work, but also the pace at which ministers are expected to respond. Ministers need support, and they must often act through others.

That doesn’t answer the question entirely. After all, ministers have hundreds, sometimes thousands, of officials to support them. But there are various reasons why spads are still necessary. Part of it is about the civil service: Ministers can choose very few of the career officials with whom they work; career officials are often generalists; and they are expected to remain neutral. Part of it is about British government, which is fragmented, being divided into departmental silos.

Ministers require support from outside the civil service to help them achieve their objectives. Being personal appointments, spads  serve the political interest of their ministers first, and that of their party in government next (in that order). They are not as bound by departments as officials are, and can take account the overall strategy of the government. The Coalition has also complicated matters: with two parties in government, spads are also needed to ensure intra-government or bipartisan support within government.

Spads have become indispensable. They began as a useful resource supplementing the work of the civil service, but as one former Cabinet minister said to us, ‘I couldn’t have done the job without them.’ Almost all of those we interviewed—ministers, officials and external stakeholders—saw spads as an established institution within British government. Parliamentary committees in various reports—from the Treasury and Civil Service Committee in 1985 to the Public Administration Committee in 2012—have consistently acknowledged the importance of spads to the process of governing. Spads, along with the permanent civil service, are now recognised in legislation.

Yet spads receive little support. They have no job description of merit. They receive minimal induction or training; and their performance is not systematically evaluated. There is little time for them to stop and reflect because of the pace of the job and the long gruelling hours; and there is zero job security—their contract terminates when their minister leaves, when there is an election, or at the whim of their minister. Generally speaking a spad’s time in government is short-lived and frenetic. About half of all spads between 1979 and 2010 have a tenure of about three years or less in government (unsurprising, given the low tenures of ministers); but a quarter of them have a tenure of six or more years (indeed, some spads commented that they had effectively became the institutional memory of the department because of the rapid turnaround within the senior civil service).

If this description of a spad’s life sounds ad hoc and chaotic, that’s not surprising. What they are able to do depends almost entirely on their minister. There is no job description for ministers or MPs either (see Lord O’Donnell on this, here and here). Politics is still thought best for amateurs—and professionalisation discouraged. Given these conditions it is surprising there are not more blunders involving spads. But the vast majority (there have been over 600 since 1979) do their job competently, and without fuss.

So it is time to start taking spads seriously: they are an established part of government. There needs to be greater professionalisation: more systematic recruitment, better induction and training, at the very least. The current job description of special advisers dates from the 1970s; there needs to be more about what spads can do rather than listing prohibitions on their conduct. Professionalisation means greater control from the centre; but the alternative is to keep ‘muddling through’.

The focus on numbers is misguided. Spads are here to stay. We need to ask how they can be more effective in government. These are issues we develop further in the book we are writing about special advisers, as the main output of our 18 month project. It is to be called Special Advisers: Who they are, what they do and why they matter and will be published next summer.

Ben Yong and Professor Robert Hazell lead on the Special Advisers project, funded by the Joseph Rowntree Charitable Trust. This post is cross-posted at the PSA Blog.

Ed Balls Ed Balls Ed Balls: Spad, Official or Both? The Joys of Research and Government Transparency

10th May 2013

It is occasionally suggested by Whitehall veterans that Ed Balls began as a spad and ended as a civil servant. We have no such evidence that this happened. The confusion seems to lie in the fact that the previous person with the title ‘Chief Economic Adviser’ was a civil servant—Sir Alan Budd), as is the current one (David Ramsden).

But in the period that Balls was ‘Chief Economic Adviser’ he was also a special adviser. He was clearly stated as such in parliamentary questions between 1997 and 2001.[1] The records are not clear for 2001-3 (Balls is not named in the records we have seen),[2] but the Chief Economic Adviser in this period is specified as a special adviser in Hansard. We’re presuming that person is still Ed Balls. So the story seems to be that Gordon Brown as Chancellor decided to appoint Balls to a role which was conventionally held by a civil servant or formal employment terms. But Balls remained a spad.[3] That is our understanding. But we would welcome—indeed, encourage—corrections.[4]

This is nerdy stuff, but it’s important. This is what research is all about: grappling with imperfect information. It’s assumed that everything in government is always perfectly recorded, but it is not. For instance, there is an expectation of regular, annual data releases on numbers and names of special advisers. And for the first two years of the Coalition numbers and names were released at regular intervals—roughly, every four months. There has not been a new release since October 2012—seven months.[5]

Does this matter? It matters to researchers like us. Imperfect or faulty information means we may make faulty inferences. So for instance the lack of up to date data on special advisers means it is difficult to determine tenure of spads with consistency. Data releases on spad numbers never talk about spads leaving, only entering government—so we have to infer from their absence that they have left.[6] Tenure is important because it would help us understand the nature of the work that spads do: for example, if tenure is short, it may suggest short-termism; if tenure is changing, it may suggest the nature of the job is changing.

But there is a deeper point here: government transparency.[7] Some people have already taken office in the period since October 2012 as special advisers, but they are not listed anywhere. Would it not be advisable to list their names and details so that people with relevant interests and concerns might be in contact with these advisers? More generally, if spad numbers have dropped or risen, that might also be useful so that the public to know, so that they can appraise the current government’s use of special advisers, and their numbers.


[1] See, eg., HC Deb 28 July 2000 vol 354 cc972-4W.

[2] See, eg., HC Deb 16 July 2003, cc328-9W. In fact there is generally very little Hansard coverage of special advisers in that period.

[3] Brown had a way of doing such things: he had a ‘Council of Economic Advisers’ which was for all intents and purposes simply another group of special advisers—if one looks at the annual data releases on special advisers, those ‘sitting’ on the Council of Economic advisers were included, oddly, as a footnote, as if to suggest they were not special advisers. Needless to say the Cabinet Office continues to follow this obfuscatory practice.

[4] Tweet us!

[5] To be exact: there was a (poorly edited) release on 19 October 2012—see Matt Honeyman’s spellbinding post on this. But there has since been a revised version of those special advisers employed as of October 19 2012 published 17 February 2013. But all that did was revise the earlier release: it does not tell us who was a spad as of 17 February 2013.

[6] Of course we can work this out in other ways, but they are less authoritative than government statements.

[7] Liz Fisher from Oxford University is similarly critical of the transparency agenda: see

http://ukconstitutionallaw.org/2013/05/09/liz-fisher-gov-uk/.