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. Continue reading →