affiliated to the International Association of Constitutional Law
Legislatures are confronted with highly complex issues which require legal advice. Much of this work is done by parliamentary lawyers—in-house lawyers who support the legislature in scrutinising legislation and executive action. Parliamentary lawyers should be distinguished from lawyer-politicians; the private staff of parliamentarians who are legally qualified, but who serve in a partisan capacity; and parliamentary counsel, government lawyers who draft executive primary legislation.
Parliamentary lawyers may also provide advice to the legislature in its corporate capacity—on matters from employment and construction law to more constitutional matters such as privilege and privacy. In doing so, parliamentary lawyers will be serving parliamentary staff, committees and parliamentarians.
On 20 April 2018, the University of Hull and the Bingham Centre for the Rule of Law (part of the British Institute for International and Comparative Law) held a seminar on the work of parliamentary lawyers. This brought together a number of former and current senior officials from the legal services of the Westminster, European and Scottish Parliaments, and the National Assembly for Wales, along with academics and parliamentarians.
This note sets out some of the key points discussed at the workshop. It does not represent the views of the several legal services of the legislatures of the United Kingdom or the European Parliament.
The objective of this seminar was to discuss the work of parliamentary lawyers, and the challenges that arise in advising legislatures and their constituent parts, including:
The organisation and work of parliamentary legal services
Initial experiences often shape the development and organisation of parliamentary legal services. The unified legal service in Wales, for instance, developed as a response to the initial lack of separation between executive and legislature and the issues created by this arrangement. By contrast, at Westminster, legal services developed organically; it has been ad hoc, demand-led. Parliamentary lawyers in Westminster have been seen as belonging to particular committees, rather than to ‘Parliament’ as an institution. This has meant that, outside of committees, members have had no formal route to legal advice from parliamentary lawyers. This is, however, changing in the House of Commons, with many parliamentary lawyers now falling under the Office of Speaker’s Counsel.
There is no set model for the provision, organisation and work of legal services within legislatures. Some legal services are structurally ‘flat’; others more hierarchical. Some will be formal in their relationship with clients; others more informal. Some legal services will advise individual members; others will not. The particular composition and configuration of parliamentary legal services may be subject to considerations other than the separation of powers. For instance, the legal service of the EU Parliament requires representation from all EU nationalities. Recruitment to parliamentary legal services sometimes comes from the government legal service, because of the specialist nature of the work, and (particularly in small legislatures) there is little capacity for career development for parliamentary lawyers within the legislature.
Most legal services focus primarily on the ‘public law’ aspects of parliamentary work (eg., scrutiny of legislation for legislative competence, human rights compatibility, technical quality); but some will also assist with corporate issues (eg., employment law, procurement). Much of the work of parliamentary lawyers is not formal ‘legal advice’—it is ‘legal information’: explanation of frameworks or law, identification of relevant legal issues. Where the powers and privileges of the legislature are explicitly defined (as in the devolved legislatures and the European Parliament), the need for legal expertise and advice becomes particularly important.
There is no set model about who the client(s) are, what the duties of parliamentary lawyers are in relation to those clients, and what to do if there are conflicts between clients. A divided select committee, for instance, can raise an issue about who is the client. There needs to be greater clarity about who the client is: this would help inform parliamentary lawyers deciding who to advise, how to advise, and when. Greater clarity would also be beneficial to parliamentarians—it could help them understand what they should expect, and the role of parliamentary lawyers in supporting them.
That said, parliamentary legal services tend to serve three core clients: the Presiding Officer, the corporate body or legislative commission, and committees. Some parliamentary legal services will provide legal advice to individual members, but on fairly limited aspects of their work, such as employment law and the drafting of amendments. Ultimately, however, the client can also include ‘the institution’, ‘the people’ and/or ‘the public’.
The relationship between clients and parliamentary lawyers
Parliamentary lawyers worry both when they are too far from parliamentarians and when they are too near, when they are mistrusted by clients and when they are treated so familiarly that the distinction between themselves and their clients disappears (paraphrasing Hugh Heclo ‘OMB and the Presidency—the Problem of ‘Neutral Competence’ (1975) 38 The Public Interest 80, 91). Put differently, parliamentary lawyers must ensure responsiveness to clients, but also publicly demonstrate impartiality.
Trust could be built up simply by doing a good job; by being proactive; by being ‘there’; by demonstrating responsiveness to the needs of the client. Parliamentary lawyers do not want to be perceived as prohibitive, impeding politics. They must sometimes give bad news, but they can compensate by being legally creative. A proactive approach can be beneficial, but it is difficult to know the limits of this approach— proactive assistance (or even too much responsiveness) could give rise to the risk of being identified with a particular party. Parliamentary lawyers are also wary of overstepping their role, effectively leading members. Thus, maintaining impartiality in the highly politicised environment of the legislature can be a challenge for parliamentary lawyers: it can also be deeply time-consuming.
Parliamentary lawyers must also maintain good relations with the other parliamentary services. The more proactive they are, the more they need to communicate what they are doing with the clerks, researchers and librarians in order to ensure a common understanding of their respective roles.
It is also important to recognise the position of parliamentarians. They are thrown into a foreign environment, and the great majority are not lawyers (at least, not in the legislatures of the UK). They have a set of competing roles (government/backbencher): this means they may prioritise particular activities, which may not require legal advice. Parliamentarians may not be aware that legal advice can be useful, or empowering: they may not even distinguish between legal advice and other forms of advice. Alternatively, they may be actively hostile to legal argument; or indifferent.
Political and constitutional dynamics matter. All the devolved legislatures in the UK, for instance, have some form of proportional representation, resulting in a different balance between executive and legislature. They also have constitutionally circumscribed law-making competences. These combined factors mean that there is a greater emphasis on the importance of legal advice (and relatively more parliamentary lawyers) than in Westminster.
External events often increase demand for legal advice—eg., changes in legislative competence, Scottish independence, Brexit. Some drivers are cyclical, others always present: for instance, legislative work (bill scrutiny, amendments etc) often reaches its peak at the end of a parliamentary term, but scrutiny of statutory instruments is onerous and ongoing (although there could be peaks for SIs as well); demand for legal advice on employment issues often rises prior to and shortly after the election period. Personalities also matter. Some Presiding Officers, Speakers or committees place more value on legal support than others.
There are a range of reasons that clients ask for legal advice: to enable action or inform scrutiny; to provide evidence for pre-existing views or aims; to provide security for a particular position, particularly on controversial issues.
In Westminster, parliamentarians’ demand for legal services appears relatively low, but there was disagreement as to why this should be, and whether or not this was necessarily something negative. First, competing demands on Westminster politicians—in particular, MPs—means that legal support is often regarded as a low priority. Second, for some, parliamentary sovereignty may mean that legal advice is seen as unnecessary: if Parliament makes the law, it is not subject to legal constraints. Third, the organisation of legal advice is itself seen as a reason for low demand. Lawyers tend to be primarily associated with committees. This could mean there was no easily identifiable source of authoritative advice for parliamentarians.
There is concern about pressures towards the publication of in-house legal advice. For instance, there is now an expectation that legal advice provided by the legal service of the European Parliament shall be published, because of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents and recent case law (De Capitani v European Parliament (Case T-540/15, 22 March 2018)).
There might be good reasons for publication—transparency, for instance, or perhaps where the public interest could be seen as best served in that way. But it was also recognised that publication as a default approach has risks—it could have a chilling effect on the work of parliamentary lawyers, turning legal advice into ‘non-advice’; it could also constrain the autonomy of legislatures and their constituent parts to decide, and parliamentary lawyers to advise, differently.
Practitioners attending pointed to the extraordinary efforts made by parliamentary staff in all UK legislatures to cope with the challenges of Brexit. This has included the creation of additional committees in some legislatures, with the attendant calls on lawyer resources. In some instances, Brexit has also created the need for additional training or information sessions for both members and parliamentary staff, and calls for additional parliamentary lawyers. But Brexit is also requiring parliamentary services to act more proactively—eg., through greater collaboration between the legal and research services. It has created an enormous demand for legal information and advice, and high quality discussion about legal issues in the UK legislatures. That said, it is not at all clear that this will lead to a permanent change in how members of these parliaments see the role of law.
(Suggested citation: B. Yong et al., ‘Lawyering for Legislatures: The Roles, Responsibilities and Challenges of Parliamentary Lawyers’, U.K. Const. L. Blog (27th Jun. 2018) (available at https://ukconstitutionallaw.org/))