Risk Management Government Lawyers and the Provision of Legal Advice within Whitehall

The Constitution Society, in partnership with the Constitution Unit, is pleased to announce the launch of our new pamphlet Risk Management: Government Lawyers and the Provision of Legal Advice within Whitehall.

Written by Dr Ben Yong the report looks into the important role that legal advice plays in the British political system. To see an interview with Dr Yong to mark the launch of the report, click here.

Government lawyers are a powerful and influential group within Whitehall, and as such they deserve greater understanding. Law and legality are now ever-present considerations in the policy and decision making process. Government cannot escape from the reach of the law – if it ever could. The result is that lawyers have become more integrated into the policy and decision making process in Whitehall because of the increasing penetration of law into government. But because law is inescapable, and its effect uncertain, lawyers talk of legal risk rather than legality and illegality. Government lawyers see themselves not as ‘guardians’ but as managers of legal risk.

This short study examines the work of government lawyers in Whitehall, looking at the changes over the past thirty years in the way that legal advice has been provided. It examines the role of lawyers in the policy and decision making process, the hierarchy of legal advice and the professional norms that government lawyers adhere to. Finally, there is a case study of the role of government lawyers in the decision to use military force against Iraq in 2002–2003. 

For further information on this or any of our papers please contact james@constitutionsoc.org.uk

26th November 2013

Member of our Advisory Board is the new Deputy Speaker

The Constitution Society is delighted at the news that Eleanor Laing MP has been voted by the Commons as the new Deputy Speaker. Mrs Laing is a member of our Advisory Board and a leading voice in Parliament on constitutional matters.

Mrs Laing won in the sixth round of voting with 257 votes and is now formally titled ‘First Deputy Chairman of Ways and Means’. The full results of today’s vote can be found here and the moment Mrs Laing was announced as the winner of the ballot is available on the BBC News website.

Eleanor Laing won cross-party support for her bid to be Deputy Speaker and will assume her post immediately. 

Our Associate Director, James Hallwood, welcomed the news: “Eleanor is a great parliamentarian and has a sound knowledge of constitutional issues. Her election is a testament to the respect her fellow Members hold for her across all of the parties. Eleanor continues to make a very valuable contribution to our Advisory Board and we offer our warm congratulations on her appointment”.

16th October 2013

Comment: The Syria vote was a triumph of parliamentary sovereignty

There are several significant angles to last night’s Commons vote on Syria. Foreign policy experts look at Britain’s role in the world and our relationship with the United States; domestic politicos look through the prism of party politics, asking who came out better between Miliband and Cameron. Meanwhile, Syria continues to suffer and we can only now hope that inaction is the lesser of two evils.

But amid the fallout, easily obscured by the more obvious issues of the day, is a seismic shift in the British constitution, an evolution that has crept up quietly but which serves to empower Parliament and constrain the executive. 

While the Prime Minister officially retains the Royal Prerogative to declare war, it is clear that this power is now tempered by the convention that Parliament must vote on the matter beforehand.

Previous votes on Iraq and Libya, while contentious, saw the government of the day validated by the Commons. Before this it had been understood that the executive had a right and duty to declare war as it saw fit. The real test of this innovation was whether a government convinced of the need for military action would respect a vote that opposed it.

The fact that Cameron had to promise the House that it would have a second vote, the fact he has now changed course so dramatically – while retaining the right to declare war – shows that votes like this are not simply rubber stamps but have become a binding convention that can change the foreign policy of a government. Read more ›

30th August 2013

Freedom of Information – The Ultimate Tool for Transparency?

From everything from hospital ‘blunders’ to personalised number plates, one finds the Freedom of Information Act used to explore a variety of previously undisclosed areas. Many have celebrated the Act, which allows the public to request information from government and public authorities. In 2005, five years after the Act was passed, Jack Straw told parliament that the Act had ‘profoundly changed the relationship between citizens, and the media on the one hand, and the Government and public authorities on the other’. The Freedom of Information Act has seen, often via media investigations, government and public officials held accountability, with a public right to check figures, analyse wastage or read the facts themselves. However despite such praise, the Act has come under criticism from others, who cite wide exceptions, high costs and the power of the ministerial veto.

The Freedom of Information Act has its roots in the likes of Clement Freud’s 1978 ‘Official Information Bill’. Whilst this may have been discarded due to the 1979 election, it showed the support for ‘open government’.  Thereafter, a number of freedom of information bills were presented, unsuccessfully to the house, alongside the passage of specific bills, such as the Data Protection Bill in 1984. These can be seen to culminate in the Freedom of Information Bill, which was given royal assent in November 2000.

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Is it time to codify Parliamentary privilege?

There is little understanding of the concept of Parliamentary privilege outside Westminster. The term tends to arouse suspicion: privilege is against the spirit of the times – it smacks of unfairness and elitism. It did not help when some of the MPs prosecuted for fiddling their expenses a couple of years ago tried to base their defence on the doctrine of privilege (the Supreme Court gave that argument very short shrift [1] ). So why should MPs be exempted from laws which apply to everybody else?

The most important aspect of Parliamentary privilege is freedom of speech in Parliament which derives from the 1689 Bill of Rights. It is a right which can be justified on simple functional grounds: MPs cannot do their job unless they can speak freely without fear of being prosecuted or dragged through the courts by wealthy litigants. For that reason it is essential to maintain Parliamentary privilege, something that is recognised in all modern, democratic constitutional systems.

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New paper on Parliamentary privilege to be launched

The Constitution Society is pleased to announce the launch of our latest paper – Parliamentary Privilege: Evolution or codification.

Written by eminent barrister, Richard Gordon QC, and Sir Malcolm Jack, former Clerk of the House of Commons (2006-2011), the paper looks at the critical constitutional issue of Parliamentary privilege from a number of interesting angles.

A formal launch on Thursday 9th May will be attended by parliamentarians, journalists and academics for a discussion on the paper’s key findings.

Until then, the paper is embargoed but a preview can be found from Joshua Rozenberg on the Guardian Law website.

Once the paper has been distributed a PDF copy will be available from the website. 

For any queries on the paper or the launch please email James Hallwood via james@constitutionsoc.org.uk

The Coalition’s mid-term constitutional plans

It’s been a furiously busy two years of constitutional news: from the AV referendum and failed Lords reform to elected Police Commissioners and fixed-term parliaments. But now with the Coalition reaching mid-point in this parliament what constitutional issues will be raised in the run-up to 2015?

The downgrading of Chloe Smith’s role from that of her predecessor’s indicates that the Coalition will be placing less priority on parliamentary and constitutional reform, but there still remain huge constitutional matters that will be addressed before the end of this parliament.

Read more ›

11th January 2013

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The Constitution Society welcomes Chloe Smith

Further to the last post, The Constitution Society has finally been informed that Chloe Smith is to be the minister replacing Mark Harper in the Cabinet Office. Unlike Mr Harper, Ms Smith’s brief appears to incorporate a far wider portfolio – “public sector efficiency and reform, political and constitutional reform and a range of other topics” according to her official website.

Previously Economic Secretary to the Treasury, Ms Smith will take on the newly constituted position of Parliamentary Secretary to the Cabinet Office. 

We welcome Ms Smith to her new role and look forward to engaging with her in the future. Issues surrounding party funding, lobbying and the ongoing debates over Scotland and Europe will require her full attention.

20th September 2012

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No replacement for Mark Harper

Despite the government’s re-shuffle taking place almost two weeks ago, the Cabinet Office is yet to announce a replacement for Mark Harper, former Parliamentary Under Secretary for Constitutional and Political Reform.

During the re-shuffle Mr Harper was appointed to the position of Minister of State for Immigration in the Home Office. However, the Cabinet Office has kept his photograph and biography on their website and continue to describe him as being in his former role. Upon phoning the Cabinet Office and House of Commons Information Office neither could shed any light on who his replacement was – both suggesting the other should know. 

The recent withdrawal of the bill pushing for an elected House of Lords and the effective concession of maintaining current constituency boundaries seems to indicate that the majority of this government’s constitutional agenda is over. The lack of a replacement for Mr Harper indicates the low priority the Coalition is now placing on these issues. 

Nevertheless it is unusual that so far after a re-shuffle no appointment has been made to replace Mr Harper. With issues surrounding Scottish independence and ‘devo max’ as well as continued debate on Europe it seems odd not to have found a suitable replacement.

The Constitution Society wishes Mr Harper all the best for his new portfolio and thanks him for his contribution to the constitutional debates of this parliament. We look forward to working with his successor, as and when he or she is announced.

17th September 2012

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How not to ‘do’ constitutional reform – by James Hallwood

The latest Coaltion fall-out over Lord’s reform has highlighted the way in which constitutional issues can easily turn into a game of political football. Booted between the Coalition partners, a decision of crucial importance on how we run our democracy has descended into short-term politicking.

A turnaround from a principled stand in favour of boundary changes to opposition marks a new low in how constitutional issues are addressed. The debate on whether AV or Lord’s reform was the price of reducing the size of the Commons misses the point entirely – constitutional changes require scrutiny and well-thought out legislation, not horse-trading and tit-for-tat.

While there are principled reasons for and against specific changes on either side of constitutional debates it is frankly depressing how these have often been quieter than discussion of partisan advantage. From arguments within Labour as to whether AV would benefit them or not to the quid pro quo agreement in the Coalition that AV would benefit the Liberal Democrats and boundary changes would benefit the Tories. 

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