Advice in a time of belief: Brexit and the civil service

Jim.Gallagher.150x150.jpgThe role of the civil service in delivering Brexit has been hotly debated by many. Its neutrality has been questioned by some, and individual civil servants have been personally criticised. But what precisely is their role when it comes to advising ministers, and has it been affected by Brexit? Jim Gallagher argues that just as political parties have been tested by the result of the 2016 referendum, the civil service is similarly under pressure.

The UK civil service prides itself on being able to serve democratically elected ministers of radically different political beliefs. This principle of political neutrality has carried it through transitions as marked as Callaghan to Thatcher, Major to Blair, and from the Brown government to its coalition successor.

The permanent home civil service has also successfully transitioned from serving Westminster departments to devolved administrations in Cardiff and Edinburgh, even advising a Scottish government in pursuing independence. None of these transitions has been painless, but Brexit seems to present a different challenge.

Individual officials have been publicly identified for criticism, dismissed or moved after giving unpalatable advice, or leaked against in the press. Sir Ivan Rogers was sacked from his job in Brussels for advising on how the EU would react. Olly Robbins will be the fall guy for negotiating Mrs May’s failed deal. Last week, Sir Kim Darroch, the UK’s ambassador in Washington, resigned, and the Cabinet secretary Sir Mark Sedwill is said to be next.

But this may not just be about individuals. Many pro-Brexit politicians seem to see the civil service as a supporter of the establishment they seek to overthrow. So is the principle of a politically neutral civil service under threat? Continue reading

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