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

How the new Sub-Committee on Disinformation can help strengthen democracy in the digital age

Michela.Palese (1)In April 2019 the Commons Digital, Culture, Media and Sport select committee established a sub-committee to continue its inquiry into disinformation and data privacy in the digital age. Michela Palese considers the motivations underlying the establishment of this sub-committee, its stated priorities, and how it can help confront the challenges and threats to our democratic processes arising from online campaigning.

Last month the Digital, Culture, Media and Sport (DCMS) select committee launched a new Sub-Committee on Disinformation. Its task is to become ‘Parliament’s institutional home’ for matters concerning disinformation and data privacy; a focal point that will bring together those seeking to scrutinise and examine threats to democracy.’

The new sub-committee promises to offer an ongoing channel through which to gather evidence on disinformation and online political campaigning, and to highlight the urgent need for government, parliament, tech companies and others to take action so as to protect the integrity of our political system from online threats.

Damian Collins, chair of the DCMS committee, explained that the sub-committee was created because of:

‘concerns about the spread of disinformation and the pivotal role that social media plays. Disinformation is a growing issue for democracy and society, and robust public policy responses are needed to tackle it at source, as well as through the channels through which it is shared. We need to look principally at the responsibilities of big technology companies to act more effectively against the dissemination of disinformation, to provide more tools for their users to help them identify untrustworthy sources of information, and to provide greater transparency about who is promoting that content.’

The sub-committee follows up on the significant work conducted as part of the DCMS committee’s long-running inquiry into Disinformation and ‘Fake News’, whose final report was published in February 2019.

This inquiry ran for 18 months, held 23 oral evidence sessions, and took evidence from 73 witnesses: its final report contained a series of important conclusions and recommendations.

Among these, the report called on the government to look at how UK law should define ‘digital campaigning’ and ‘online political advertising’, and to acknowledge the role and influence of unpaid campaigns and Facebook groups both outside and during regulated campaign periods. It also advocated the creation of a code of practice around the political use of personal data, which would offer transparency about how people’s data are being collected and used, and about what messages users are being targeted with and by whom. It would also mean that political parties would have to take greater responsibility with regards to the use of personal data for political purposes, and ensure compliance with data protection and user consent legislation. Continue reading

Looking forward, looking back: an evening with Sir David Natzler

IMG.2771On 19 March, the Unit held an event: ‘Challenges for Parliament: Looking Back, Looking Forward’, at which Sir David Natzler – who retired as Clerk of the House of Commons in February – spoke to Professor Meg Russell about his 40-year career in parliament. The discussion was both entertaining and informative; Dave Busfield-Birch summarises the key points.

Early days

Sir David first started working in the House of Commons in 1975, at what he called an ‘exciting time’, just two years after the UK had joined what was then known as the European Communities. His first assignment was as clerk to the European Legislation Committee, which was facing the novel challenge of sifting through the legislation passed by an unelected Council of Ministers sitting in the capital city of another country, and recommending which measures should be debated.

Parliament was unsurprisingly a very different place in the early years of Sir David’s Commons career. Talking of the key differences, he first spoke of how ‘expectations’ had changed significantly since then. For example, there were no limits on how long a Member could speak in those days. Whereas the Speaker (or one of the Deputy Speakers) can now impose relatively short time limits for MPs wishing to speak, that was not the case in 1975. Sir David considered this ‘almost one of the biggest changes’ of the past two or three centuries; that speaking for a long time can no longer be used to ‘destroy business’.

One of the other key differences between then and now is that the House of Commons lacked fiscal independence when he first started working there. It was instead reliant on the government for finance, thereby limiting its ability to take crucial decisions such as whether or not to recruit more staff. The Treasury hence had control of the Commons until the establishment of the House of Commons Commission in 1978, at which point the Commons became fiscally independent. Continue reading

Effective and influential: where next for departmental select committees?

220px.Official_portrait_of_Dr_Sarah_Wollaston_crop_2Forty years after the creation of departmental select committees, it is beyond doubt that they have contributed significantly to the scrutiny of government. But could they be doing more? The House of Commons Liaison Committee has established an inquiry to answer this question. Dr Sarah Wollaston explains that this is a necessary task to ensure that committees continue to innovate and perform their crucial functions with the involvement of MPs, experts and the general public.

It is difficult to imagine a House of Commons without its select committees. They are places where MPs can come together and work across party divides, often showing parliament at its best. They are central to the scrutiny of government. They have the authority to question those with influence and power but are also forums where MPs engage with and listen to a range of voices, and provide a platform to those who might otherwise not be heard. Committee work provides an important focus for the working lives of many MPs, who can use them to develop and deploy their own expertise. But in fact this level and intensity of scrutiny of the government and other agencies of the state by parliament is a relatively recent phenomenon.

The departmental select committee system will celebrate its fortieth birthday in June this year. The Liaison Committee, which is made up of all the Chairs of the select committees, sees this anniversary as providing an unmissable opportunity to take stock and reflect on whether select committees are fulfilling their potential, and if not, to find what is stopping them. Do select committees do the right things, with the right people, resources, powers and outputs? What has worked well, and what could they do better?

The 1979 select committee reforms were heralded at the time as the start of a great new era. Norman St John Stevas, then Leader of the House, stated that the Commons was ‘embarking upon a series of changes that could constitute the most important parliamentary reforms of the century’. Although select committees had a long parliamentary history, their use had declined through the first half of the twentieth century. Writing in 1970, Bernard Crick, the political philosopher, noted that the government had resisted establishing a select committee system:

For one thing, Select Committees on matters of public policy have been thoroughly distrusted and disliked by the Whips; despite government majorities on them, they have an awkward tendency to develop cross-bench sentiment, and a shocking habit of regarding the Executive as guilty until it is proved innocent. Continue reading

Pre-appointment scrutiny hearings

robert-hazell-350x350In September the Commons Public Administration and Constitutional Affairs Committee published their report into Pre-Appointment Scrutiny Hearings. Robert Hazell gave evidence to the committee’s inquiry on the subject; here he discusses the report’s conclusions, and describes the events that led to its being undertaken, including two Constitution Unit studies that evaluated the effectiveness of such scrutiny.  

The recently published report of the Commons Public Administration and Constitutional Affairs Committee (PACAC) was the product of an inquiry undertaken at the request of the Commons Liaison Committee, because of growing concerns amongst Select Committee chairs that pre-appointment scrutiny hearings were a charade, especially when the government ignored committee recommendations.  The Liaison Committee and PACAC both heard evidence from the former Constitution Unit Director, Professor Robert Hazell, who explained that pre-appointment hearings were more effective than MPs recognised, and suggested ways in which they could be made more effective still.

Pre-appointment scrutiny hearings were introduced by Gordon Brown, when he became Prime Minister in July 2007.  In his Green Paper The Governance of Britain he proposed:

… that the Government nominee for key positions … should be subject to a pre-appointment hearing with the relevant select committee. The hearing would be non-binding, but in the light of the report from the committee, Ministers would decide whether to proceed.  The hearings would cover issues such as the candidate’s suitability for the role, his or her key priorities, and the process used in the selection.

The Cabinet Office and the Liaison Committee subsequently agreed a list of just over 50 key positions which would be subject to the new procedure. Ten years later, by the end of the 2015-17 Parliament, there had been almost 100 scrutiny hearings, involving almost every single departmental Select Committee. The Constitution Unit conducted an early evaluation of the first 20 hearings in 2009-10, and a second study in 2016-17, looking at a further 70 hearings. Continue reading

Why we need a Committee for Future Generations in the House of Lords

88q98 (1)The Foundation for Democracy and Sustainable Development has proposed that the House of Lords establish a Committee for Future Generations to review legislation. It is hoped that such a body would reduce the short-termism that can creep into legislative and executive decision-making. Graham Smith explains why this Committee is needed and how it could work in practice.

The problem of short-termism in democratic politics is well understood. Psychologically, we all tend to prioritise more immediate concerns over long term considerations. Our electoral cycles of four to five years mean that politicians and political parties typically think in those timescales. Long-term issues are often complex and thus are difficult to deal with in the policy silos of government. Future generations by definition are not present and thus have no direct representation within decision making processes.

Some of the most challenging issues we face run against these tendencies, requiring us to take a long-term perspective and consider the interests of future generations. Rapid technological development, inter-generational economic opportunity, welfare and social care provision, or environmental challenges such as climate change all fit into ‘the too difficult box – the big issues that politicians can’t crack’ identified by former Labour minister Charles Clarke. The problem of ‘short-termism’ in politics was explored in detail by the international Oxford Martin Commission for Future Generations in its 2013 report, Now for the Long Term. The Commission recommended that, as a matter of urgency, governments invest in ‘innovative institutions… independent of the short-term pressures facing governments of the day but appropriately accountable to the political system in question.’ Such institutions ‘should be charged with conducting systematic reviews and analysis of longer-term issues.’ Continue reading