Tacticians, Stewards, and Professionals: The Politics of Publishing Select Committee Legal Advice
| Author | Ben Yong,Cristina Leston‐Bandeira,Greg Davies |
| DOI | http://doi.org/10.1111/jols.12153 |
| Date | 01 September 2019 |
| Published date | 01 September 2019 |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, NUMBER 3, SEPTEMBER 2019
ISSN: 0263-323X, pp. 367±95
Tacticians, Stewards, and Professionals: The Politics of
Publishing Select Committee Legal Advice
Ben Yong,* Greg Davies,** and
Cristina Leston-Bandeira***
At Westminster, there are increasing pressures on select committees to
publish in-house legal advice. We suggest that examining the process of
deciding to publish provides useful insights into the provision,
reception, and use of legal advice, and the dynamics of select com-
mittees generally. We argue that the autonomy of select committees to
decide what use they make of evidence and advice they receive is, in
practice, constrained by the intra-institutional dynamics and practices
of select committees. Committee actors ± parliamentarians, clerks, and
parliamentary lawyers ± each have overlapping, sometimes competing,
roles. Most of the time, these roles and the responsibilities they encom-
pass coincide, but the prospect of publication reveals clear tensions
between the different actors. This is the politics of publication: the
tactical approach of politicians is in tension with the stewardship of
clerks and the professional norms of parliamentary lawyers. We suggest
this tension will only increase in the near future.
367
*Law School, University of Hull, Hull HU6 7RX, England
b.yong@hull.ac.uk
** Wales Governance Centre, School of Law and Politics, Cardiff University,
Cardiff CF10 3AX, Wales
daviesgj6@cardiff.ac.uk
*** School of Politics and International Relations, University of Leeds,
Leeds LS2 9JT, England
C.Leston-Bandeira@leeds.ac.uk
We would like to thank the three anonymous referees and one parliamentary lawyer for
their comments on an earlier draft of this article. We are also grateful to the Leverhulme
Trust for its support: this research was funded by a Leverhulme Trust research grant,
`Legal advice to legislatures ± supporting a professionalising legislature' (RPG-2016-
388).
This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution
and reproduction in any medium, provided the original work is properly cited.
ß2019 The Authors. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU)
INTRODUCTION
In 2017, the House of Lords European Union Subcommittee on Financial
Affairs took a highly unusual step: it published the advice provided by the
EU Committee legal adviser, Paul Hardy, as part of its inquiry on Brexit and
the EU budget.
1
Hardy argued article 50 of the Treaty on European Union
(TEU) allowed the United Kingdom `to leave the EU without being liable for
outstanding financial obligations under the EU budget.'
2
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, with the legal
adviser named, also merits serious attention.
Publishing legal advice in this way is rarely done, and then only on an ad
hoc basis: seven times in the past decade. But there are intensifying pressures
on the Westminster parliament ± and indeed in other legislatures ± which
make it more likely to happen. The shift in the centre of influence at West-
minster from the debating chamber towards select committees is one reason.
3
In the House of Commons, the Wright reforms (under which chairs and
members of committees are now elected by their peers) will intensify this
trend.
4
There have been high-profile hearings in select committees in recent
years which have involved charged legal issues: tax avoidance by Goldman
Sachs and phone hacking by News International, for example.
5
Parlia-
mentarians feel increasingly compelled to seek and publish advice as
evidence to justify particular conclusions and ensure influence.
6
Brexit, and
all the complexity it entails, is another pressing reason. The process has
forced government and legislature alike to wrangle with the publication of
legal advice. In Westminster, opposition parties have repeatedly pushed the
government to publish its internal advice, such as the legal implications of
the withdrawal agreement.
7
The Welsh and Scottish legislatures have also
faced pressures to publish during this period. In early 2018, their presiding
officers took the unusual decision to disclose the legal reasoning for their
368
1 House of Lords EU Committee, Fifteenth Report, Brexit and the EU Budget, HL
(2016±17) 125.
2 id., p. 63.
3 A. Brazier and R. Fox, `Reviewing Select Committee Tasks and Modes of
Operation' (2011) 64 Parliamentary Affairs 354, at 365.
4 L. Fisher, `The Growing Power and Autonomy of House of Commons Select
Committees: Causes and Effects' (2015) 86 Political Q. 419.
5 M. Hodge, Called to Account: How Corporate Bad Behaviour and Government
Waste Combine to Cost Us Millions (2016); House of Commons Committee of
Privileges, First Report, Conduct of witnesses before a select committee: Mr Colin
Myler, Mr Tom Crone, Mr Les Hinton, and News International, HC (2016±17) 662.
6 M. Geddes, `Committee Hearings of the UK Parliament: Who gives Evidence and
Does This Matter?' (2018) 71 Parliamentary Affairs 283.
7 H. Zeffman, `Labour to demand backstop legal advice' Times, 3 November 2018.
ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)
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